Natural Resources Access Regulator v Green Leaf Australia Group Pty Limited; Natural Resources Access Regulator v Xiuming Lin

[2025] NSWLC 1

Local Court

New South Wales

Medium Neutral Citation:

Natural Resources Access Regulator v Green Leaf Australia Group Pty Limited; Natural Resources Access Regulator v Xiuming Lin [2025] NSWLC 1

Hearing dates:

25 November 2024 and 21 February 2025

Date of orders:

27 February 2025

Decision date:

27 February 2025

Jurisdiction:

Criminal

Before:

Nash LCM

Decision:

See paragraph [149]

Catchwords:

Environmental offences – sentencing after findings of guilt at hearing – offences under the Water Management Act 2000 by a corporate land owner and director of company pursuant to executive liability provisions – commercial farming business cultivating tomato, cucumber and ginger crops – use of dams without approval – construction (extension) of dams without approval – carrying out of controlled activities without approval – assessment of objective seriousness of offending conduct – consideration of subjective circumstances of offender – instinctive synthesis approach to sentencing – deterrence, denunciation and retribution for environmental offences – totality principle – consistency in sentencing – capacity to pay a fine – restoration and remediation orders – publication orders – costs

Legislation Cited:

Biodiversity Conservation Act 2016

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Environmental Planning and Assessment Act 1979

Fines Act 1996

National Parks and Wildlife Act 1974

Protection of the Environment Administration Act 1991

Water Management Act 2000

Cases Cited:

Ace Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4

Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No. 2) [2002] FCA 559

AxerPty Ltd v Environment Protection Authority (1993) 113 LGERA 357

Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234

Blackwell v R [2011] NSWCCA 93

Boughey v The Queen (1986) 161 CLR 10

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

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

Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185

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

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

Chief Executive of the Office of Environment and Heritage v Turnbull [2017] NSWLEC 141

Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110

Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137

DS v R [2022] NSWCCA 156

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

Environment Protection Authority v Albiston [2020] NSWLEC 80

Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433

Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71

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

EPA v Barnes [2006] NSWCCA 246

Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd [2024] NSWLEC 63

Environment Protection Authority v Calleija; Environment Protection Authority v Budget Waste Recycling Pty Ltd [2024] NSWLEC 119

Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58

Environmental Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90

Environment Protection Authority v Green [2024] NSWLEC 81

Environment Protection Authority v Hanna [2018] NSWLEC 80

EPA v Ghossayn Group Pty Ltd [2023] NSWLEC 127

Environment Protection Authority v Hughes [2019] NSWLEC 108

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

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

Environment Protection Authority v Whites Timber Products Pty Ltd; Environment Protection Authority v White’s Haulage Pty Ltd [2024] NSWLEC 135

FL v R [2020] NSWCCA 114

Garrett v Williams (2006) 160 LGERA 115

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

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

Harris v Harrison [2014] NSWCCA 84

Harrison v Perdikaris [2015] NSWLEC 99

Hewitt v R (2007) 180 A Crim R 306

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

Johnson v The Queen (2004) 205 ALR 346

La Fontaine v R (1976) 136 CLR 62

Leichhardt Council v Geitonia Pty Ltd (No. 7) [2015] NSWLEC 79

Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170

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

Mill v the Queen (1988) 166 CLR 59 at 62-63; [1998] HCA 70

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

Natural Resources Access Regulator v Green Leaf Australia Group Pty Limited; Natural Resources Access Regulator v Xiuming Lin [2024] NSWLEC 2

Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59

NCR Australia Pty Ltd v The Credit Connection Pty Ltd & ors [2005] NSWSC 1118

NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 75 LGRA 320

Park v R [2021] HCA 37

Paterson v R [2021] NSWCCA 273

Pearce v The Queen (1998) 194 CLR 610

Pemble v R (1971) 124 CLR 107

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

Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202

R v Crabbe (1985) 156 CLR 464

R v Doan (2000) 50 NSWLR 115

R v Dodd (1991) 57 A Crim R 349

R v Eaton [2023] NSWCCA 125

R v El Masri [2005] NSWCCA 167

R v Nichols (1991) 57 A Crim R 391

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

R v Yildiz (2006) 160 A Crim R 218

Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 152

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

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

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

WaterNSW v Harris (No. 3) [2020] NSWLEC 18

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Natural Resources Access Regulator (Prosecutor)
Green Leaf Australia Group Pty Limited (First Defendant)
Xiuming Lin (Second Defendant)

Representation:

Counsel:
Mr M McAuliffe (Prosecutor)
Mr N Carney (First and Second Defendants)

Solicitors:
Crown Solicitor’s Office NSW (Prosecutor)
JREA Legal (First and Second Defendants)

File Number(s):

2023/00068231, 2023/00068235, 2023/00068247, 2023/00068255, 2023/00068258, 2023/00068266, 2023/00068268, 2023/00068277, 2023/00068281, 2023/00068288, 2023/00068291, 2023/00068294, 2023/00068272, 2023/00068289, 2023/00068303, 2023/00068323, 2023/00068332, 2023/00068343, 2023/00068362, 2023/00068369, 2023/00068387, 2023/00068400, 2023/00068410, 2023/00068416.

Publication restriction:

Nil

Judgment

A.   INTRODUCTION

1. Green Leaf Australia Group Pty Limited (which I will refer to in these remarks as ‘the company’) and Xiuming Lin (who I will refer to as ‘Mr Lin’) stand for sentence in relation to the 12 offences I found proved against each of them on 25 June 2024 (see Natural Resources Access Regulator v Green Leaf Australia Group Pty Limited; Natural Resources Access Regulator v Xiuming Lin [2024] NSWLC 2, which I will refer to in these remarks as the ‘verdict judgment’).

2. Regrettably, the hearing of these sentencing proceedings has been delayed because an earlier mutually convenient date to the court and the legal representatives could not be found. Further, the evidence on the sentencing hearing could not be completed on 25 November 2024, and the earliest mutually convenient date to resume the evidence and to hear final submissions was 21 February 2025.

3. These remarks on sentence assume familiarity with the verdict judgment. That decision sets out the factual findings I made in respect of the 12 offences I found proved in respect of each of the company and Mr Lin. Those findings are relevant to, and adopted for the purposes of, imposing a sentence for each of the offences.

4. I also adopt the abbreviations used in my earlier decision for the purposes of these remarks on sentence. In particular, I will refer to the Water Management Act 2000 simply as ‘the WM Act’.

5. Each of the offences were strict liability offences against ss 91B and 91E of the WM Act. In summary, the company was the operator of a commercial farming business which primarily cultivated tomato, cucumber, and ginger crops at the Property in several greenhouses. The company is, and at all material times has been, the registered proprietor of the Property, and Mr Lin was one of its directors. During the period that the company has owned the Property, several water storages and a channel were constructed and used in connection with the farming operations, and at no time had the company or any other person held approval to construct or use the said water storages and channel. These objects were collectively referred to as ‘dams’ for the sake of convenience. This was the conduct giving rise to the offences.

6. As with the verdict judgment, these sentencing remarks will address all the offences.

7. On sentence, I also received additional evidence from the prosecutor as follows:

1. Expert report of Dr Lachlan Copeland dated 17 October 2023;

2. Supplementary statement of Jennifer Davis dated 8 November 2024; and

3. Letter from Ayla Kelly dated 1 October 2024.

8. Each of these documents was contained in the prosecutor’s ‘bundle on sentence’ which was marked as Exhibit 47 in the proceedings.

9. The prosecutor also read the affidavits of Ryan James Graham, solicitor in the employ of the Crown Solicitor’s Office, affirmed on 22 November 2024 and 20 February 2025.

10. Dr Copeland was also cross examined. Neither Ms Davis, Ms Kelly nor Mr Graham were required for cross examination. I note that Ms Kelly was not available for cross examination and concern was expressed about this on behalf of the company and Mr Lin. Although no objection was taken to the tender of her letter, I have explained below how I have used her evidence in determining the appropriate sentence to impose on each of the company and Mr Lin.

11. Exhibit 47 also contained a set of proposed short minutes of order (at tab 4), which I will return to at the end of my remarks. They included restoration/remediation orders which the prosecutor seeks under s 353B of the WM Act. The short minutes of order also contain a proposed publication order which the prosecutor submits should be made under s 353G of the WM Act.

12. On sentence, I also received additional evidence from the company and Mr Lin. Tendered as Exhibit 48 was a bundle of documents described as the ‘defendant’s sentencing bundle’. That bundle contained 17 items as follows:

1. Statement of Mr Lin dated 23 November 2024;

2. Apology letter from Mr Lin dated 18 November 2024;

3. Character reference from Joe Raco, Criniti Bros Sydney Markets, dated 13 November 2024;

4. Character reference from Andy Cannuli, Fresh Xpress, dated 8 November 2024;

5. Support letter from Local Mayor Liz Campbell dated 26 April 2019;

6. Support letter from Local MP Pat Conaghan dated 22 June 2020;

7. Financial Report of the company (2023);

8. Tax Return for Mr Lin (2023);

9. NSW Title search dated 12 September 2023;

10. Historical Title search dated 12 September 2023;

11. Community Strategic Plan 2022 Your Future 2024 Kempsey Shire Council;

12. ASIC Search Green Leaf Australia Group Pty Limited dated 21 August 2024;

13. Expert opinion/report of Geoff Cresswell on Harm and Farming Practices dated 16 November 2023;

14. Bore Water test – unsuitable dated 11 September 2023;

15. Warning letter to Mr Lin dated 22 June 2022;

16. Form 1 Application for Adjournment dated 19 November 2024; and

17. Affidavit of Michelle Dennis affirmed 20 November 2024.

13. Also tendered on behalf of the company and Mr Lin was an expert report of Fiona Alexis Gainsford dated 17 February 2025, which was marked as Exhibit 49.

14. Mr Lin was also cross examined.

15. Dr Cresswell was called to give oral evidence and was cross examined.

16. Ms Gainsford was not required for cross examination.

17. Later in these reasons I will explain how I have used all this evidence in determining the appropriate sentences to be imposed for the offences. I have had regard to the written and oral submissions made by the parties at the sentencing hearing which was conducted on 25 November 2024 and 21 February 2025.

B.   ISSUES

18. It was apparent from the evidence and submissions of the parties that the disputed issues on sentence were as follows:

1. First, the extent of any environmental harm caused by the offending conduct;

2. Secondly, the proper characterisation of the state of mind of each of the company and Mr Lin in respect of the commission of the offences;

3. Thirdly, whether the company and Mr Lin have shown contrition and remorse for the offending conduct and the extent of any such contrition and remorse;

4. Fourthly, and relatedly, the risk, if any, of the company and Mr Lin re-offending and their prospects of rehabilitation;

5. Fifthly, how the principle of totality should be applied in determining the appropriate penalty for each of the offences;

6. Sixthly, the relevance of the Local Court’s jurisdictional limit in imposing a penalty for each offence, and the prosecutor’s decision to commence these proceedings in the Local Court rather than the Land and Environment Court of NSW;

7. Seventhly, whether the prosecutor should have commenced criminal prosecution proceedings or whether some other enforcement options should have been taken;

8. Eighthly, whether the Local Court has the power to make the proposed restoration/remedial orders; and

9. Ninthly, whether the court should award the prosecutor its costs of the proceedings, and if so, in what quantum.

19. Below I have set out my findings in relation to each of these matters.

C.   OVERARCHING LEGAL PRINCIPLES AND RELEVANT LEGISLATION

20. The correct method of sentencing is the ‘instinctive synthesis’ method having regard to all the relevant objective and subjective circumstances surrounding the commission of the offences (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).

21. In so doing, the Court must not take facts into account in a manner adverse to the company or Mr Lin unless those facts have been established beyond reasonable doubt. If there are circumstances that the Court proposes to take into account in favour of the company or Mr Lin, it is enough that those circumstances are proved on the balance of probabilities (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).

22. Factors personal to a defendant, such as age, health, background and some post-offence conduct, are relevant to the purposes of sentencing. These factors may also be relevant to the assessment of the offender’s moral culpability for an offence (Paterson v R [2021] NSWCCA 273 at [31]). The line between the assessment of the objective seriousness of the offence and the offender’s moral culpability is not always straight-forward, with some subjective factors in some circumstances being relevant to both assessments (DS v R [2022] NSWCCA 156 at [94] – [96]).

23. The sentences to be imposed on the company and Mr Lin for the commission of the offences must be proportionate to both the objective seriousness or gravity of the offences and their respective subjective circumstances (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

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

25. The objective gravity of the offences is to be judged by two principal components: the precise acts or omissions of the offender; and the consequences of those acts or omissions (Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71 at [22]).

26. The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision, contravention of which constitutes the offence and its place in the statutory scheme. A proper understanding of the purpose of creating an offence is assisted by consideration of the objects of the statute. A fundamental consideration with particular relevance to environmental offences is the degree by which, having regard to the maximum penalties, the offender’s conduct would offend against the legislative objective expressed in the statutory offence (Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [15] and the cases cited. See also Chief Executive of the Office of Environment and Heritage v Turnbull [2017] NSWLEC 141 at [17]).

27. In this respect, the WM Act provides a comprehensive statutory regime for the sustainable and integrated management of the water sources of New South Wales for the benefit of both present and future generations. It also encourages the sharing of responsibility for the sustainable and efficient use of water between the government and water users (WaterNSW v Harris (No. 3) [2020] NSWLEC 18 at [414]). The need to obtain consent or approval to construct and use a water supply work or carry out a controlled activity is the touchstone of the statutory regime set out in the WM Act. The failure to obtain an approval prevents assessment of the environmental impact of such works and impedes the orderly, efficient and equitable sharing of water from water sources. This theme necessarily influences the approach that must be undertaken in determining an appropriate penalty for each of the offences in these matters.

28. The objects of the WM Act are set out in s 3 as follows:

3   Objects

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

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

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

(c)  to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including—

(i)  benefits to the environment, and

(ii)  benefits to urban communities, agriculture, fisheries, industry and recreation, and

(iii) benefits to culture and heritage, and

(iv)  benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water,

(d)  to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources,

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

(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,

(g)  to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users,

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

29. These objects reinforce the public protective nature of the legislative regime and the importance of sustainable and efficient water use (Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59 at [16]).

29. In Harrison v Perdikaris [2015] NSWLEC 99 the Court observed (at [46]-[47]):

1. There is a need for the upholding of 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, secondly, making application in the appropriate form and manner (including environmental impact assessment of the activity) and obtaining any approval so required before carrying out the activity and, thirdly, complying with the terms and conditions of any approval granted in carrying out the activity.

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

   31. Offences against the WM Act frustrate the attainment of the objects of that Act, including the principles of ecologically sustainable development and the efficient and equitable sharing of water. The principles of ecologically sustainable development are defined in the Dictionary to the WM Act to mean principles of ecologically sustainable development described in s 6(2) of the Protection of the Environment Administration Act 1991, which include the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity, and improved valuation, pricing and incentive mechanisms.

   32. Ecologically sustainable development is fundamental to meeting the needs of the present and future generations. It is a touchstone and central element in decision-making relating to planning for and development of the environment and the natural resources that are the bounty of the environment (see Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [57]).

   33. In determining the objective seriousness or gravity of the offences the relevant objective circumstances include: the nature of the offences; the maximum penalty under the Act creating the offences; the reasons for committing the offences; the environmental harm caused by the commission of the offences; the foreseeability of the risk of environmental harm caused by the commission of the offences; the practical measures that could have been taken to prevent environmental harm; the company’s/Mr Lin’s control over the causes giving rise to the offences; and the company’s/Mr Lin’s state of mind at the time of committing the offences (Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5 at [68]).

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

3A   Purposes of sentencing

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

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

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

(c)  to protect the community from the offender,

(d)  to promote the rehabilitation of the offender,

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

(f)  to denounce the conduct of the offender,

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

35. These purposes overlap and none can be considered in isolation from the others when determining an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions (Veen v R (No. 2) (1988) 164 CLR 465 at p 476).

36. 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 at [91]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [168]; Natural Resources Access Regulator v Bao Lin Pty Limited [2022] NSWLEC 42 at [45]).

37. The maximum penalty for each offence involving the company is a fine of $2,002,000 (see s 363B of the WM Act).

38. The maximum penalty for each offence involving Mr Lin is a fine of $500,500 (also see s 363B of the WM Act).

39. The strict liability nature of the offences, and the maximum penalty provided for the offences, indicates the seriousness with which Parliament views their commission (AxerPty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698E and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [57]). It also provides a sentencing yardstick for the case before the Court (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [31] and Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5 at [175]).

40. The Local Court has a jurisdictional maximum of a fine of $22,000 for each offence (see s 364(6) of the WM Act). This only becomes relevant if I find any penalty for any of the individual offences should otherwise exceed that sum. The jurisdictional maximum does not represent the sentence reserved for the worst case (R v Doan (2000) 50 NSWLR 115 at [35] and R v El Masri [2005] NSWCCA 167 at [30]). There is no jurisdictional maximum in respect of the total or aggregate sentence to be imposed on either the company or Mr Lin.

41. Section 21A of the Crimes (Sentencing Procedure) Act 1999 provides for statutory aggravating and mitigating factors that may be relevant in determining an appropriate sentence. In respect of the subject offences, the following aggravating factors are relevant as they were the subject of evidence and submissions at the sentencing hearing:

1. Section 21A(2)(g): the injury, emotional harm, loss or damage caused by the offence was substantial;

2. Section 21A(2)(n): the offence was part of a planned or organised criminal activity; and

3. Section 21A(2)(o): the offence was committed for financial gain.

42. The following mitigating factors are also relevant as they were the subject of evidence and submissions at the sentencing hearing:

1. Section 21A(3)(a): the injury, emotional harm, loss or damage caused by the offence was not substantial;

2. Section 21A(3)(e): the offender does not have any record (or any significant record) of previous convictions;

3. Section 21A(3)(f): the offender was a person of good character;

4. Section 21A(3)(g): the offender is unlikely to re-offend;

5. Section 21A(3)(h): the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise; and

6. Section 21A(3)(i): the remorse shown by the offender for the offence, but only if—

1. The offender has provided evidence that he or she has accepted responsibility for his or her actions; and

2. 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).

43. For offences created under the WM Act, the Court must also consider the matters set out in s 364A of that Act:

364A   Matters to be considered in imposing penalty

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

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

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

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

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

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

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

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

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

(i)   whether, in committing the offence, the person was complying with orders from an employer or supervising employee,

(j)   in the case of an offence of taking water in contravention of this Act, whether the water so taken had been released for environmental purposes and, if so, whether the person was aware of that fact,

(k)   any civil penalty that has been imposed on the person under section 60G in relation to the conduct from which the offence arises.

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

44. The matters that were the subject of submissions at the sentencing hearing were those set out in s 364A(1)(c), (d), (e), (f), (g) and (h) of the WM Act.

D.   FINDINGS

(a)   Objective seriousness

45. I now turn to the specific factors relevant to an assessment of the objective seriousness of each of the offences. For the avoidance of doubt, where I make a finding on any matter relevant to sentence, unless otherwise stated, that finding applies equally in respect of each of the 24 offences.

46. I start with the question of the state of mind of each of the company and Mr Lin in committing the offences. This is relevant under s 364A(1)(h) of the WM Act.

47. A strict liability offence committed intentionally, recklessly or negligently will be objectively more serious than one not so committed (Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5 at [135]). The difference between recklessness and negligence was explained in Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 at [51] – [54]:

1. A critical difference between the two mental states is that recklessness is measured on a subjective standard (the referent being the offender) while negligence is measured on an objective standard (the referent is a hypothetical reasonable person).

2. Recklessness refers to the state of mind of the offender who, in clearing native vegetation, is aware of a risk that the particular consequence or circumstance, that the clearing will be done except in accordance with such lawful authority, is likely to result. The offender is reckless when he or she has knowledge or foresight of the likelihood of the consequence or circumstance occurring. The word “likely” conveys “the notion of a substantial – a ‘real and not remote’ – chance regardless of whether it is less or more than 50 per cent”: Boughey v The Queen (1986) 161 CLR 10 at 21.

3. Negligence, in contrast, assesses the offender’s conduct not be reference to what the offender knew, foresaw or did, but rather by reference to what a hypothetical reasonable person would have known, foreseen or done in the circumstances. In the context of s 12(1) of the NV Act, negligence refers to whether a hypothetical reasonable person in the position of the offender would have known or foreseen that the consequence or circumstance, that the clearing will be done except in accordance with the lawful authority of a development consent or a property vegetation plan, is likely to result. The issue is to be decided on an objective basis. What is to be considered is whether the risk of this consequence or circumstance was foreseeable to the reasonable person in the position of the offender, not whether the offender subjectively foresaw the risk: NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 75 LGRA 320 at 321, 324, 325.

4. The degree of departure from the appropriate standard of care, in order to be negligent under the criminal law, needs to be such that the court, on an assessment of all of the facts, can conclude that failure to take the relevant precaution warrants criminal punishment: Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 at 439 and see also NSW Sugar Milling Cooperative Ltd v Environment Protection Authority at 321, 325.

   48. Further, the court said in Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5 at [139] – [141]:

5. In Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 the Court considered the test for recklessness (at [98], quoted recently in Environment Protection Authority v Albiston [2020] NSWLEC 80 at [98]):

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

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

6. An offender’s conduct will be found to be reckless if he, she or they are put on notice, in the sense that he, she or they believes or suspects that an act or omission may be unlawful but nevertheless proceeds to engage in it without making further enquiries (Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 at [136], citing Chief Executive Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126] and Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 at [141]).

7. The test for recklessness is subjective (Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241 at [51]).

   49. By a combination of several factors and circumstances, I find the only reasonable and rational inference available is that each offence was committed recklessly, and hence I am satisfied of this fact beyond reasonable doubt. Those factors and circumstances are as follows:

   1. First, in my verdict judgment, I explained why I accepted the evidence of Mr Newport. He said that when dam 1 was constructed, he told Mr Lin the company needed to apply for approval to build more dams. That evidence was not challenged;

   2. Secondly, Mr Lin spoke of his awareness of the need for an approval relating to dam 3;

   3. Thirdly, Mr Stuart, again a witness whose evidence I earlier accepted, said that dam 1A existed when the company purchased the Property, and dam 1B was constructed between 28 June 2014 and 14 September 2014. When Mr Lin therefore had his conversation with Mr Newport as referred to above, this was before any of the offences were committed;

   4. Fourthly, Mr Newport also spoke of his conversation with Mr Lin about the approval requirements for dam 1 and dam 3 and told him that the company had already taken its harvestable rights from the Property. Mr Newport’s warnings were consistent with him only being involved in the construction of dam 3 while Mr Lin was responsible for the construction of each of the other dams. The evidence of Mr Lin in his recorded interview raises no doubt about his awareness of the need to obtain approval as it is inconsistent with the unchallenged evidence of Mr Newport whose evidence was tested in cross examination under oath. My reasons for accepting Mr Newport’s evidence are set out in the verdict judgment. It is also inconsistent with Mr Lin’s awareness of the approval held by the company in respect of the test bore. This is further compounded by the circumstances arising from his recorded interview when he was asked about why he did not speak with WaterNSW prior to the extension of dam 1A. Mr Lin said this was because of his limited English, he did not know the place well and thought it was within the farm and they were just trying to store the rainwater. This answer was not consistent with the actions the company took prior to the construction of dam 3 which involved consultation with Peter Hackett from the water authority in Grafton. The construction of dam 3 was completed on 18 April 2014, well before any of the offending conduct. All of this was reinforced by Mr Lin’s evidence on sentence, in which he acknowledged that Mr Newport had told him the extension to dam 1B (which occurred between 6 October 2016 and 17 November 2016, and was therefore the first-in-time of all the offences before the court), was illegal because the company already had its harvestable right, and that if any excavation occurred the company will probably be fined. Therefore each of the offences was committed after Mr Newport told Mr Lin it was illegal because they already had their harvestable rights (i.e. dam 3).

   50. I am satisfied beyond reasonable doubt from all this evidence that Mr Lin and therefore the company had knowledge and foresight of the likelihood that constructing and using each of the dams required lawful prior authority, but constructed and used them irrespective of that knowledge.

   51. I now turn to the question of environmental harm. This is relevant under s 364A(1)(c) of the WM Act. In Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299, Preston CJ of LEC stated that environmental harm includes both actual and potential harm (at [145]-[149]). The court identified the following principles in establishing environmental harm, namely, that:

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

   2. Harm can include harm to the environment and its ecology resulting from adverse impacts to a particular animal or plant;

   3. Harm can be direct or indirect, individual or cumulative;

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

   5. The fact that the environment that is harmed by the defendant’s conduct was already disturbed or modified is not a mitigating factor.

   52. Harm can result from conduct that undermines a regulatory scheme which seeks to prevent environmental damage (Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 at [23] and Thompson at [114] and [117]-[118]).

   53. As I said earlier, for the prosecutor, Dr Copeland gave evidence. Dr Copeland was cross examined but ultimately no part of the cross examination undermined the opinions he expressed in his report. I have considered his evidence further below.

   54. For the company and Mr Lin, the evidence of Dr Cresswell was adduced.

   55. In the context of environmental harm, it is also pertinent to observe the nature and extent of the various dams that were unlawfully constructed, in particular their surface area and capacity. I set out these details at length in my earlier verdict judgment and have briefly repeated these details below.

   56. Having regard to all the evidence adduced on the sentencing hearing, and the consequence of my finding concerning the evidence of Dr Copeland, I now make the following specific findings as to environmental harm (which is to be distinguished from cultural harms, being a matter to which I will turn separately and later in these remarks):

   1. Dam 1A (charge 5): no actual environmental harm was occasioned, however the physical features of the dam and the offending conduct, as explained in the verdict judgment, were that the dam wall was increased/extended from 45m to 143m. The dam reached 1.7m below the natural ground level. The surface area of the dam was 0.21ha. The maximum depth was 2.5m and the capacity was 1.6 mega litres;

   2. Dam 1B (charge 6): no actual environmental harm was occasioned, however the physical features of the dam and the offending conduct, as explained in the verdict judgment, were that the dam was a large body of water with several partially submerged trees. The wall on the northern bank was extended from 235m to a total of 340m. The surface area of the dam became 2.14ha. The maximum depth was 4.6m and the capacity was 29.7 mega litres. The dam reached 2.7m below the natural ground level;

   3. Dam 4 (charge 1): actual environmental harm was occasioned. Before identifying the extent of harm, the physical features of the dam and the offending conduct comprised the construction of a large body of water. The earthworks were approximately 470m in length on 13 December 2017 and the vegetation had been removed and bare earth was visible. The completed earthworks extended 2.3m deeper than the natural ground level and comprised a dam wall 505m in length. The wall was steep, semi consolidated and approximately 3 metres above the ground below. The maximum depth of dam 4 was 5.6m. The dam’s surface area was 5.49ha with a capacity of approximately 82.4 mega litres. Between 4.91ha and 5.2ha of the surface area of the dam was constructed on waterfront land. The environmental harm was explained in Dr Copeland’s report as comprising the death of at least 7 mature Forest Red Gums and the decline in health of a number of Broad-leaved Paperbarks. When pressed on the extent of environmental damage in cross examination, Dr Copeland remained firm in his opinion that the destruction of the 7 trees because of the use of the dams was ‘significant’ on a local scale, considering the size of the Property. Dr Copeland also identified the proliferation of introduced species, being Water Hyacinth (Eichhornia crassipes), an environmental weed;

   4. Dam 4 (charge 7): actual environmental harm was occasioned. Prior to its construction, the site of dam 4 was covered with grass or pasture, trees and shrubs. During construction the vegetation was removed to bare earth where the 505m dam wall was constructed. Dam 4 was constructed within the ecological community of ‘Swamp Sclerophyll Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions’. This ecological community is listed as endangered by the Biodiversity Conservation Act 2016. Dr Copeland said the construction of dam 4 resulted in the partial clearing and permanent degradation of a significant area of this community. He also identified the proliferation of introduced weeds such as South African Pigeon Grass (Setaria sphacelate) and Groundsel Bush (Baccharis halimifolia), which was in abundance on the dam wall on the south-eastern edge of the dam. Further, he said that prior to construction of dam 4, the area would have been a natural wetland with fluctuating moisture levels and relatively high native plant species diversity, which would not have supported a high abundance of the 2 introduced weeds. The area now had fewer native plants and more introduced weeds;

   5. Dam 5 (charge 2): actual environmental harm was occasioned. Before identifying the extent of harm, the physical features of the dam and the offending conduct comprised the construction of a large body of water. The completed earthworks extended 2.5m below the natural ground level. The surface area was 3.63ha. Parts of the dam wall were at least 5m higher than the surrounding land. The maximum depth was 6.1m and the capacity was 52 mega litres. Between 2.69ha and 3.17ha was waterfront land prior to construction. The environmental harm was the death and decline in health of a number of Broad-leaved Paperbarks. These dying paperbarks, with very few remaining leaves, stood in contrast to the healthy, foliated, non-inundated trees observed during the field survey immediately south-west of the dam;

   6. Dam 5 (charge 8): actual environmental harm was occasioned. Prior to its construction, the site which was now dam 5 was covered with grass or pasture, trees and shrubs. The vegetation was removed to bare earth where the dam wall was built. The construction of dam 5 resulted in the partial clearing and permanent degradation of 2 small areas of the following endangered ecological communities as listed in the Biodiversity Conservation Act 2016:

   1. Swamp Sclerophyll Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions;

   2. Freshwater Wetlands on Coastal Floodplains of the New South Wales Coast, Sydney Basin and South East Corner Bioregions.

   7. The construction of the dam also facilitated the introduction of weeds such as South African Pigeon Grass (Setaria sphacelate) and Groundsel Bush (Baccharis halimifolia) which were now in abundance on the dam wall on the southern edge of dam 5. Dr Copeland noted that South African Pigeon Grass and Groundsel Bush both outcompete native plant species and were present in such high numbers due to the drier soil on the top of the raised dam wall. If the raised wall had not been constructed, the soil in that area would have remained moist and unable to support the high abundance of these weeds.

   8. The area of dam 5 supported a relatively high diversity of native plant species prior to its construction. Since its construction, the area consists of fewer native plants and more introduced weeds.

   9. Dam 6 (charge 9): actual environmental harm was occasioned. Before identifying the extent of harm, the physical features of the dam and the offending conduct comprised the construction of a small excavation of approximately 0.13ha. According to Mr Lin, the dam had a depth of about 1.2m and was dug to test the soil and whether it leaked or could hold water suitable for growing water lotus. The whole of the dam was located on waterfront land. The environmental harm is to be understood in the context where the excavation of the dam occurred in a diverse, well developed sedgeland with tall, mature sedges up to 1.5m tall. Tall perennial sedges are indicative of a sedgeland that have been present for at least several years and not just as a result of a single, recent inundation event. Dr Copeland also said that the excavation of the dam changed the floristic composition within a small area of a naturally occurring sedgeland wetland which meets the criteria for ‘Freshwater Wetlands on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions’. The Biodiversity Conservation Act 2016 listed this ecological community as ‘endangered’.

   10. The deep water in the dam now harbours a lower native plant species diversity than the surrounding area as fewer plant species can survive in semi-permanent water. The change in floristic composition includes the abundance of the introduced weed, Flaxleaf fleabane (Conyza bonariensis).

   11. Dam 7 (charge 10): actual environmental harm was occasioned. Before identifying the extent of harm, the physical features of the dam and the offending conduct comprised the construction of a small excavation of approximately 0.07ha. According to Mr Lin, the dam had a depth of about 1.2m and was dug to test the soil and whether it leaked or could hold water suitable for growing water lotus. The whole of the dam was located on waterfront land. The environmental harm is to be understood in the context where the excavation occurred in a diverse, well developed sedgeland with tall, mature sedges up to 1.5m tall. Tall perennial sedges are indicative of a sedgeland that has been present for at least several years and not just as a result of a single, recent inundation event.

   12. Dr Copeland also said that the excavation changed the floristic composition within a very small area of a naturally occurring sedgeland wetland. The area was an endangered ecological community under the Biodiversity Conservation Act 2016, namely the ‘Freshwater Wetlands on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions’. The deep water in the dam now harbours a lower native plant species diversity than the surrounding area as fewer plant species can survive in semi-permanent water.

   13. Dam 8A and 9 (charge 3): no actual environmental harm was occasioned, however the physical features of the dam and the offending conduct, as explained in the verdict judgment, were that these were part of a connected continuous structure. Dam 8A was a small dam that led to dam 9 which was a long channel for the purpose of conveying water to dam 5. Dam 8A was 0.6m below the natural ground level. The entire 0.05ha area of dam 8A and 0.03 to 0.04ha of dam 9 was located on waterfront land. Parts of dam 8A and 9 were located in the Clybucca Aboriginal area outside the boundary of the Property;

   14. Dam 8A and 9 (charge 11): actual environmental harm was occasioned. The excavation of these dams changed the floristic composition within the dam 8A area. The deep water in dam 8A is likely to harbour a lower native plant species diversity than the surrounding area. Along the water’s edge of dam 8A is a very dense layer of South African Pigeon Grass (Setaria sphacelate) which would have taken advantage of the soil disturbance following the earthworks. Its abundance and competitiveness exclude nearly all native plant species;

   15. Dam 8B (charge 4): no actual environmental harm was occasioned, however the physical features of the dam and the offending conduct, as explained in the verdict judgment, were that it was a small dam that was not connected to the irrigation system on the Property. The dam was abandoned after it was considered the area was unsuitable for a dam and channel;

   16. Dam 8B (charge 12): no actual environmental harm was occasioned.

   57. Dr Copeland was also cross examined about the presence of waterfowl at the Property. Dr Copeland’s answers do not, however, provide any basis to conclude that there was an increased proliferation of waterfowl because of the offending conduct, or that any such increase could mitigate the environmental harm cause by that conduct.

   58. For completeness, I find the evidence of Dr Cresswell does not cast any doubt over the correctness of the various opinions of Dr Copeland insofar as concerns the environmental harm or lack thereof caused by the offending conduct in each of these proceedings. The purpose of Dr Cresswell’s report was to opine on the growing methods used in the operations of the Green Leaf farm, and to comment on the efficiency of water and fertilizer use. Dr Cresswell concluded that the only possible way to farm the Property is to collect the store some of the water that falls on the land, and that the future of the Green Leaf farm depended on a reliable source of fresh water for irrigation. He further said that Mr Lin’s careful use of water and fertilizer has helped to minimise the impact of the farm on the immediate environment. All of this can be readily accepted, so far as it goes, because this information does not undermine the conclusions which Dr Copeland reached concerning the environmental impacts caused by the construction and use of the various dams themselves.

   59. To the extent that I have found the offending conduct resulted in actual harm or a risk of harm, I am not satisfied beyond reasonable doubt (and indeed it was not contended) that the harm was substantial (s 21A(2)(a) of the Crimes (Sentencing Procedure) Act 1999).

   60. As I mentioned earlier, there was also evidence of cultural harm as expressed in the letter from Ayla Kelly dated 1 October 2024 tendered as part of Exhibit 47. That person is the Sites Officer of the Dunghutti Elders Council (Aboriginal Corporation). There was ultimately no dispute that dams 8A and 9 were partially located within an area described as the ‘Clybucca Aboriginal Area’, while dam 8B was located completely within that area. There was no dispute that the ‘Clybucca Aboriginal Area’ is a declared Aboriginal area pursuant to s 30A of the National Parks and Wildlife Act 1974.

   61. Section 30K of the National Parks and Wildlife Act 1974 provides as follows:

(1)  The purpose of reserving land as an Aboriginal area is to identify, protect and conserve areas associated with a person, event or historical theme, or containing a building, place, object, feature or landscape—

(a)  of natural or cultural significance to Aboriginal people, or

(b)  of importance in improving public understanding of Aboriginal culture and its development and transitions,

so as to enable those areas to be managed in accordance with subsection (2).

(2)  An Aboriginal area is to be managed in accordance with the following principles—

(a)  the conservation of natural values, buildings, places, objects, features and landscapes of cultural value to Aboriginal people in accordance with the cultural values of the Aboriginal people to whose heritage the buildings, places, objects, features or landscapes belong,

(b)  the conservation of natural or other cultural values,

(c)  allowing the use of the Aboriginal area by Aboriginal people for cultural purposes,

(d)  the promotion of public understanding and appreciation of the Aboriginal area’s natural and cultural values and significance where appropriate,

(e)  provision for appropriate research and monitoring, in accordance with the cultural values of the Aboriginal people,

(f)  provision for the carrying out of development in any part of a special area (within the meaning of the Hunter Water Act 1991) in the Aboriginal area that is permitted under section 185A having regard to the conservation of the Aboriginal area’s natural and cultural values,

(g)  provision for sustainable visitor or tourist use and enjoyment that is compatible with the Aboriginal area’s natural and cultural values and the cultural values of the Aboriginal people,

(h)  provision for sustainable use (including adaptive reuse) of any buildings or structures or modified natural areas having regard to the Aboriginal area’s natural and cultural values and the cultural values of the Aboriginal people.

62. Ayla Kelly said that the Clybucca Aboriginal area was a place of deep cultural heritage for the Dunghutti people. That this must be so is at least consistent with it having been declared as an ‘Aboriginal area’ under the National Parks and Wildlife Act 1974. Being a declared Aboriginal area, and in circumstances where actual unauthorised construction works have been carried out as I described in detail in my earlier verdict judgment and as I have just summarised, it is understandable that the construction works and use of the dams have had an impact such as to cause cultural harm. I accept, however, that the actual extent of harm cannot be measured or quantified other than to note that the offending understandably would be seen as a violation of the objects of s 30K of the National Parks and Wildlife Act 1974 within the local Aboriginal community. The evidence does not allow a finding to be made, however, that the cultural harm impacts were ‘substantial’ within the meaning of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.

63. I note that Mr Lin acknowledged his awareness of the cultural impact of the offending conduct on the Clybucca Aboriginal community.

64. Accordingly, I have had regard to the cultural harm impacts in assessing the objective seriousness of the offences comprised in charges 3, 4, 11 and 12, albeit only to the limited extent as I have explained.

65. Finally, on the topic of environmental and cultural harm, I will make a few observations about the expert report of Ms Gainsford, which the company and Mr Lin adduced on the sentencing hearing. Ms Gainsford has 31 years’ experience in environmental impact assessment for infrastructure projects in New South Wales across a wide range of sectors including water supply works and dams. It is difficult to see how that report assists either the company or Mr Lin in determining an appropriate sentence for each of the offences. In fact, Ms Gainsford report is an ‘own goal’ for the company and Mr Lin because it reveals, in some detail, the critically important aspects of environmental assessment peculiar to the Property, and in light of the nature and extent of the dams on that Property, which the company and Mr Lin recklessly circumvented by carrying out the various construction works without prior development consent or approval. In this respect, amongst other things:

1. Ms Gainsford opines that the dams on the Property are considered to be ‘artificial waterbodies’ and thus works which trigger the ‘designated development’ provisions of the Environmental Planning and Assessment Act 1979;

2. As she confirms, ‘designated development’ refers to high-impact developments or those which are located in or near an environmentally sensitive area;

3. The location of certain dams on the Property is such that they are adjacent to an environmentally sensitive area of State significance (including parts of dams 4 and 5 which are identified as coastal wetlands), they are on or within 100m of a wetland and within an area mapped as containing acid sulphate soils;

4. She confirms that the Property had 2 threatened ecological communities associated with the wetlands;

5. A development application would, in all the circumstances, needs to be accompanied by an environmental impact statement addressing:

1. The mapped biodiversity values and identified threatened ecological communities;

2. Acid sulphate soils which require careful management associated with any changes to the groundwater level;

3. Methods of managing water quality of the farm dams and their associated water run-on catchment to ensure the water remains clear for horticultural purposes and does not generate algae and all embankments remain stable;

4. Hazards and risks based on the slope of the Property and noting the mapping in respect of ‘Vegetation Buffer Vegetation Category’;

5. Construction and operational traffic movements;

6. The Clybucca Aboriginal area, which has extensive artefacts associated with Aboriginal occupation. The reserve was created to preserve a midden that runs the full length of the reserve and is the largest known manmade midden in Australia;

7. Details of waste handling;

8. Air quality impact assessment;

9. Noise and vibration assessment; and

10. Detailed justification for the construction works particularly taking into consideration the environmental conservation zoning that impacts parts of the Property;

6. Ms Gainsford also confirms that, in addition to the need for an environmental impact statement, the development application would need to be publicly notified for at least 28 days. The indicative timeframes for the environmental assessment process are:

1. Project scoping report and engineering design: 3-6 months;

2. Request for, and issuing of, SEARs: 3 months;

3. Preparation of EIS: 6-12 months;

4. Council assessment of the development application: 4-6 months;

5. Public consultation/notification: at least 28 days;

6. Request for further information and response: 2-4 months;

7. Decision-making: 3-4 months;

7. Ms Gainsford also confirms that the application could be the subject of a merits appeal to the Land and Environment Court of NSW by any person who makes an objection to the application;

8. In other words, Ms Gainsford’s report discloses everything that the company and Mr Lin failed to do to ensure that the construction works on the Property the subject of each of the offences was environmentally assessed prior to any works occurring, and that they circumvented the rights of the public to comment on the proposal and object to the construction works (including by commencing an appeal). The actions of the company and Mr Lin caused harm to the planning system insofar as their actions undermined the planning controls imposed by, and the objects of, both the WM Act and the Environmental Planning and Assessment Act 1979.

66. I now turn to the question of the reasonable foreseeability of harm. This is relevant under s 364A(1)(e) of the WM Act. There can be no doubt that the nature and extent of the offending conduct would have the obvious potential to cause environmental harm. The offending involved the removal of vegetation and trees and significant disturbances of the land form.

67. As to control over causes of harm, self-evidently Mr Lin and the company had complete control over the causes of the harm. This is relevant under s 364A(1)(f) of the WM Act. The evidence all pointed in one direction: namely, that nothing about the offending conduct was due to factors beyond the company’s or Mr Lin’s control.

68. In relation to the practical measures which could have been taken to prevent or mitigate the environmental harm, there are various ways the company and Mr Lin could have prevented, controlled, abated or mitigated the environmental harm. This is relevant under s 364A(1)(d) of the WM Act. Applications for consent or permission to carry out the construction works and ongoing use of the subject works could have been submitted and environmentally assessed prior to construction and excavation of each of the relevant dams. The company and Mr Lin could have refrained from constructing water supply works and carrying out controlled activities without a licence or approval. They could have prevented the establishment of invasive species by not disturbing an existing wetland and they could also have remediated the land to return it to its original condition.

69. As to the company’s and Mr Lin’s reasons for committing the offences, I note the terms of s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999, namely, that a crime committed for financial gain is an aggravating factor on sentence. The criminality involved in the commission of the offences by a defendant is measured not only by the seriousness of what actually occurred but also by reference to the reasons for its occurrence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357at 366 and Bentley at [237]). Financial gain does not need to be the only purpose of the offending to enliven this aggravating factor (see Environment Protection Authority v Albiston [2020] NSWLEC 80 at [118]). The aggravating feature will be made out even if the conduct is ultimately unprofitable (see Environment Protection Authority v Hughes [2019] NSWLEC 108 at [98]). In Garrett v Williams (2006) 160 LGERA 115, Preston CJ of LEC said at [121], that carrying out of an offence to make a profit, or to save incurring an expense or to avoid the cost of obtaining and implementing a statutory permission such as a development consent or environment protection licence increases the seriousness of the crime. Offenders should not profit from crime.

70. The only reasonable and rational inference available is that, with the exception of charge 4 (being the use of dam 8B, which related to an abandoned test dig where there was no financial motivation in the storage of the water), the offending conduct was motivated by financial gain. I therefore make this finding beyond reasonable doubt for the following combination of reasons:

1. First, as Mr Lin said in his recorded interview, each of the water supply works or controlled activities captured or used water for commercial purposes;

2. Secondly, the requirement to store and use large volumes of water was created by the need to supply water to 498 greenhouses. The greenhouses and the crops produced in those houses operated for the commercial benefit of the company;

3. Thirdly, Meiqin Chen said that more than 5 years ago the Property experienced drought conditions which impacted the crop, the plants died and this inflicted financial loss. Mr Lin said in his recorded interview that the dams were constructed for future use in case the drought returned;

4. Fourthly, dams 6 and 7 were test digs to advance the company’s commercial interests.

71. I note in this context that the company’s and Mr Lin’s intentions were to ‘drought proof’ the Property to be able to continue the operations as a going concern. I accept that the company provides a benefit to the local community in terms of food production and employment opportunities, and wishes to continue to do so. I accept the company’s and Mr Lin’s actions were also not malicious or intentionally destructive of the environment, and that there was a severe water shortage (a drought), but all of these factors do not and must not undermine the fact that the company and Mr Lin were required to seek and obtain development consent and relevant approvals prior to the construction works, and that their decision to proceed with those works in the absence of all necessary prior approvals was reckless and motivated for financial gain, in the sense as explained in the case authorities to which I have made mention.

72. I now turn to s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999. The expression ‘organised criminal activity’ includes activity that is carried out by just one person (Hewitt v R (2007) 180 A Crim R 306 at [25]). Offences carried out over a sufficiently long period of time may involve sufficient repetition and system to lead to the conclusion that they were organised within the meaning of s 21A(2)(n) and even where the organisation involved is not complicated (see NCR Australia Pty Ltd v The Credit Connection Pty Ltd & ors [2005] NSWSC 1118 at [75] and [76]). This aggravating feature must not be taken into account if the degree of planning is an ‘inherent characteristic’ of the offence but may be taken into account where the degree of planning exceeds that which is inherently characteristic of the offence (see R v Yildiz (2006) 160 A Crim R 218 at [37]).

73. It is conceivable that offences against s 91B(1) or s 91E(1) of the WM Act might be committed without any planning, preparation or organisation. For example, an offender may construct a dam or drainage channel without the need to consider how they may integrate with irrigation systems for a large commercial farm. This can be contrasted with the subject Property where the controlled activities were undertaken so as to construct dams to irrigate 498 greenhouses, and required the hire of earthworks machinery.

74. Mr Lin designed dam 4 and it was integrated into the irrigation system and capable of collecting tailwater. It was constructed because of shortage of water and for future use in the event the drought returned. It involved the hire of a 12 tonne excavator and a 22 tonne excavator. It took 20 days to construct and was sizeable. Mr Lin designed dam 5 and it also was integrated into the irrigation system. It was constructed for the same reasons as dam 4, using a 24 tonne excavator, and was also sizeable. Dams 8A and 9 were constructed after dam 8B was deemed unsuitable. In respect of dam 9, Mr Lin said in his recorded interview that the original intent was to build a dam, but then decided to divert water into dam 5 through a channel. Dam 8A and 9 were designed to convey water and tail water a considerable distance to dam 5. Dam 8A and 9 connect the irrigation system with the larger dam 5 and dam 4. The function, scale and size of dams 8A and 9 is evidence of the planning required for their construction.

75. For all these reasons, I find beyond reasonable doubt that in respect of the offences comprised in charge 7 (dam 4), charge 8 (dam 5) and charge 11 (dams 8A and 9), that the controlled activities the subject of each of these offences involved a planned or organised criminal activity.

76. I have now explained my assessment of the objective seriousness of each offence by reference to the factors set out in s 364A of the Act and relevant factors set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. While it has become increasingly common for judges to do so, exposing the reasons for the ultimate sentencing outcome does not generally require a sentencing judge to place the objective seriousness of the offence on some putative scale from “low range”, through “mid-range”, to “high range” (see R v Eaton [2023] NSWCCA 125 at [57]). What is important is to fully identify the ‘facts, matters and circumstances’ which bear on the assessment of the gravity of the crimes, as I believe I have done. It is not necessary to express the conclusion reached by reference to a position within a range, or by resorting to mathematical terminology (see also FL v R [2020] NSWCCA 114 at [60]).

77. Accordingly, I do not propose to express any conclusions about the overall objective seriousness of any of the offences by reference to a position within a range.

78. My findings concerning the objective seriousness of the offending are summarised in the following table:

Dam (charge no.)	Size/ capacity	Actual environmental harm	Cultural harm	Financial gain (s 21A(2)(o))	Planned/ organised (s 21A(2)(n))
Dam 1A (charge 5)	Moderate extension of existing dam	No	No	Yes	No
1B(6)	Large	No	No	Yes	No
4 (1)	Large	Moderate	No	Yes	No
4 (7)	Large	Moderate	No	Yes	Yes
5 (2)	Large	Low-moderate	No	Yes	No
5 (8)	Large	Low-moderate	No	Yes	Yes
6 (9)	Small	Low-moderate	No	Yes	No
7 (10)	Small	Low-moderate	No	Yes	No
8A & 9 (3)	Small	No	Low	Yes	No
8A & 9 (11)	Small	Low	Low	Yes	Yes
8B (4)	Small	No	Low	No	No
8B (12)	Small	No	Low	Yes	No

(b)   Subjective circumstances

79. I now turn to the subjective circumstances of each of the company and Mr Lin.

80. Neither the company nor Mr Lin have any record of previous convictions (s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999).

81. I accept that both the company and Mr Lin are persons of good character (s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999). This is consistent with their lack of any record of previous convictions, but also having regard to the positive character references of Mr Raco of Criniti Bros and Mr Cannuli of Fresh Xpress. I also note the uncontested evidence of Mr Lin as contained in his written statement dated 23 November 2024 that during the Covid19 pandemic in 2020, the company donated fresh vegetables and tomatoes to the local community through a government agency ‘Resilience NSW’ to assist in the Covid response. This is an example of the good character of the company and Mr Lin.

82. The letters from Mayor Liz Campbell of Kempsey Shire Council (dated 26 April 2019) and Mr Conaghan MP (Federal Member for Cowper) (dated 22 June 2020) are not character references which indicate an awareness of the charges which the company and Mr Lin have been found guilty of. The purpose of those letters appears to relate to Mr Lin’s previous visa applications, and so I do not consider that much weight if any can be placed on them for the purposes of sentencing. Despite this, given the company’s and Mr Lin’s lack of any previous convictions, and given the 2 character references that have been tendered and in respect of which I have identified above, I nonetheless accept they are persons of good character.

83. I have read and had regard to Mr Lin’s written statements dated 18 November 2024 and 23 November 2024. In summary, the following evidence was given:

1. The company and Mr Lin were sorry for the harm to the Aboriginal community caused by the construction of dams 8A, 8B and 9;

2. The company and Mr Lin were sorry that the dams have caused harm to the environment;

3. Without the dams, the Green Leaf farm will unlikely be able to continue as a going concern; and

4. The company and Mr Lin are greatly remorseful for what has happened and apologise to all the people and community impacted and harmed by their conduct. They have learned a harsh lesson from the whole process and will do their best to ensure such mistakes will not happen again in the future.

84. This evidence is relevant to whether the company and Mr Lin have shown contrition and remorse for the offending conduct (s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999).

85. Contrition and remorse are more than simply being sorry for the consequence of the criminal conduct but involve an acceptance of the responsibility for the offence and the consequences of it. Remorse for a crime cannot be shown if the facts are not faced and if the criminality is not owned. As I said earlier, Mr Lin was cross examined and his evidence is relevant not only in respect of the offences brought against him personally, but also in his capacity as a director and hence representative of the company. Despite the content of Mr Lin’s written statements which I have summarised above, in which at face value he appears to show remorse, and apologises for what has occurred, I am unable to find on balance that contrition and remorse, as mitigating factors on sentence under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, have been proved, principally for the reason being, as his cross examination revealed, that he sought to defer responsibility for the offending onto Mr Newport. In this respect, I note the following features of the evidence:

1. Mr Lin was vague and evasive concerning the timing of Mr Newport’s departure from the company. This date, however, was important because Mr Lin’s assertions that he relied on Mr Newport for advice concerning the construction of dams 4 and 5 cannot be correct if Mr Newport left the company prior to their construction;

2. Mr Lin did not agree that his relationship with Mr Newport deteriorated, despite his letter of apology stating that ‘the relationship deteriorated during the drought with a disagreement about whether bores or dams were the best direction for the farm’. Mr Lin’s evidence was that the drought was in 2018. In re-examination, Mr Lin was willing to accept and could remember a disagreement with Mr Newport;

3. During cross examination, Mr Lin was unable to recall when Mr Newport left the company. However, during re-examination, Mr Lin was able to recall details such as Mr Newport’s email use in 2023 and that he was being paid a salary in 2018 (although it was not clarified whether that salary was to provide advice about approvals and dams or some other purpose);

4. The letter of Liz Campbell, Mayor of Kempsey Shire Council dated 26 April 2019, states: ‘…Roger has resigned and the new manager Aissa Tai who speaks fluent Mandarin and English, now runs the business smoothly assisting Mr Lin ensuring the business has no communication barriers with the English language’. Despite this evidence, Mr Lin remained unwilling to accept that Mr Newport was not involved in the construction of dam 5.

86. Further, Mr Lin said in his evidence that ‘it doesn’t make any difference if we build 300 or 500 or 200’ hothouses. He then agreed that one difference would be the amount of water that was required. He also stated that despite telling NRAR investigators in August 2021 that the company needed someone who could assist them in dealing with government and the kind of authorities that are needed, he had not hired anybody to take on that role.

87. Mr Lin also continued to describe the offending conduct as a ‘mistake’, however considering my findings on his state of mind and, by extension, that of the company, this is a considerable understatement of what happened. I have been left with the distinct and inescapable impression that the company and Mr Lin are far more concerned with the financial impact of the fines to be imposed rather than genuinely recognising and responding to the environmental harms, including the risk of harm, associated with the offending conduct.

88. Also, despite the effluxion of time, there is no evidence of any substantive steps having been taken by the company or Mr Lin to regularise the lawfulness of the works that have been carried out, whether that be to return the landform to its state prior to the offending conduct, or to take steps to seek and obtain retrospective and prospective permissions, as may be required, in relation to the works and use of the dams.

89. Considering this evidence collectively, I am not able to confidently find, on balance, that the company or Mr Lin is unlikely to re-offend (s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999) nor that they have good prospects of rehabilitation (s 21A(3)(h) of the Crimes (Sentencing Procedure) Act 1999). The bare apologetic words purporting to express remorse and insight into the offending, as set out in the apology letter to the court authored by Mr Lin, was undermined by the evidence he gave in cross examination in which he shifted blame to Mr Newport and having regard to his continued mischaracterisation of the offending conduct as being a ‘mistake’.

90. The ultimate wash up of the evidence was that both the company and Mr Lin have not in fact, on balance, accepted responsibility for the offending conduct, nor have they adequately acknowledged the harm to the environment or made reparation for such harm. The company continues to operate the Green Leaf farm and Mr Lin continues to be a director of that entity. I accept that the subjective material to which I have referred, particularly the written letters of apology authored by Mr Lin, shows at least some insight into the offending behaviour.

91. When combined with the lack of any previous convictions, I do not consider that either the company or Mr Lin have a high risk of re-offending, nor that they have poor prospects of rehabilitation, but in my view, for the reasons I have given, I consider there is at least an appreciable risk of the company and Mr Lin re-offending against, in particular and relevantly, the WM Act.

92. I confirm that I will synthesise these findings regarding the company’s and Mr Lin’s subjective circumstances with the objective seriousness of each of the offences in determining the appropriate penalty to be imposed for the offences.

(c)   Deterrence, denunciation and retribution

93. The Court is required to take into account both specific and general deterrence in the determination of an appropriate sentence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569-570 per Brennan J).

94. As the court said in Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42 at [219] and [220], general deterrence is particularly important in sentencing for environmental offences.

95. The sentence imposed by the Court should be such as to ensure that the penalty is not to be regarded by the company or Mr Lin or others as an acceptable cost of doing business. In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278, Preston CJ of LEC discussed general deterrence in the context of sentencing for environmental crime (at [66]-[68]). Those principles are applied here without repetition.

96. In the present case, there is no reason to depart from the generally accepted view as to the critical importance of general deterrence in sentencing for environmental offences. Further, given the number of offences committed by the company and Mr Lin, and my findings as to recklessness, despite the lack of criminal record I find that the penalty imposed on the company and Mr Lin must serve to reinforce their responsibility to ensure that they carry out their activities in compliance with the WM Act, and therefore that a significant degree of specific deterrence is reflected in the sentence to be imposed for each offence.

97. I accept, however, that the hitherto clean record of the company and Mr Lin means that some leniency can and will be accorded to them, which would not be accorded to a company or individual with a past record of similar offences.

98. The Court must also impose a sentence that achieves the purpose of denouncing the conduct the subject of the offences and making the company and Mr Lin accountable for their actions. No contention was made in this case that the court should proceed in any way other than imposing fines for each offence.

(d)   Totality   

99. The totality principle was recently considered by Duggan J in Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59 (at [48]-[50] and [52]):

48.   The principle of totality is a relevant sentencing principle in the present case where each of the offences with which the Defendant has been charged and which it has been found guilty arise from the same identical facts and circumstances (albeit with differing error rates for each offence).

49.   The principle has been concisely described by the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610 (Pearce) at 623 as:

623    To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

50.   Each party also referred me to the statement of the principle expressed by Preston CJ of LEC in Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [142] that:

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.

…

52.   I also have had regard to the expression of the principle in Ace Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 at [108]-[111] where Leeming JA considered the application of principle of totality in the following manner:

108    I turn to totality. The primary judge found that the three offences involving Mr Al Sarray’s fraudulent provision of information formed part of a single course of conduct, and was satisfied on the balance of probabilities that the fourth offence was carried out by Mr Al Sarray and was part of the same course of conduct: at [89]-[90]. His Honour regarded that finding as favourable to ACE, as is reflected by his application of the civil standard in respect of the fourth offence. I should proceed on the same basis.

109    EPA v Barnes [2006] NSWCCA 246 at [43]-[50] contains an extensive analysis by Kirby J writing for this Court on the applicable principles, confirming that the principle of totality applied to fines. The principle was applied at [50]:

Here, the fine in respect of count 1 ($4,000) was significantly different from that in respect of count 2 ($500). However, the disparity by itself does not suggest error. Where there are multiple offences, each punishable by a custodial sentence, the totality principle may find expression through the complete or partial accumulation of sentences, or through making all or some of the sentences concurrent (cf Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624 (para 45)). However, there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 346.

110    In EPA v Ghossayn Group Pty Ltd [2023] NSWLEC 127 at [128], Preston CJ of LEC said:

The totality principle applies where an offender has committed, and is to be sentenced for, multiple offences. The effect of the totality principle is to require the court in passing 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: Mill v the Queen (1988) 166 CLR 59 at 62-63; [1998] HCA 70; Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57 at [49]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [196]. In the case of a sentence of a fine, if the Court believes the totality principle requires an adjustment to the individual fines that would otherwise be appropriate, the amount of each fine can be altered: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [50].

111 There is the potential for overlap when considering offending which is a “single course of conduct” and applying the principle of totality. As will be seen below, the third offence overlaps with the first, and properly warrants a discount for that reason. In a sense, whether that is an aspect of the offending being part of the same course of conduct, or through the application of totality does not greatly matter. Nonetheless, the principled approach, as applied by Kirby J and Preston CJ of LEC in the passages reproduced above, is to leave questions of totality to the end, and apply a final check of the aggregate against whether it is a just and appropriate punishment for the entire criminality. That is the course I shall follow.

100. Various decisions of the Land and Environment Court have demonstrated a mathematically transparent process when applying the totality principle. See for example: Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5 at [277] – [281]; Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59 at [48] – [53]; Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd [2024] NSWLEC 63 at [135] – [138]; Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127 at [127] – [128]; Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42 at [252]; Environment Protection Authority v Green [2024] NSWLEC 81 at [73] – [75]; Environment Protection Authority v Whites Timber Products Pty Ltd; Environment Protection Authority v White’s Haulage Pty Ltd [2024] NSWLEC 135 at [219] – [223].

101. In Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23, the High Court (Gageler, Nettle and Gordon JJ) said at [64], that applying the principle of totality involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. The court went on to say that up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong, and that generally speaking, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.

102. In R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159, the Court (Spigelman CJ, Whealy and Howie JJ) said at [18] that a sentencing court must, however, take care when applying the totality principle, and public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending.

103. In this case, I find the totality principle applies in the following way:

1. The subject matter of each of the offences was broadly identical, although committed at different times and in respect of different parts of the Property. But more specifically, I note the following:

1. The conduct the subject of charges 1 (dam 4) and 2 (dam 5) occurred on the same date;

2. The conduct the subject of charges 3 (dam 8A and 9) and 4 (dam 8B) occurred on the same date;

3. Charges 5 (dam 1A) and 6 (dam 1B) relate to separate but closely integrated water supply works. The construction in respect of charge 6 (dam 1B), however, occurred about 3 years before the charge 5 (dam 1A) construction;

4. The excavation of dams 6 and 7 arose from the same course of conduct;

2. For completeness, I note that the use water supply work charges (charges 1 to 4) concern separate and distinct offending many years after the construction of the relevant dams;

3. If I were to simply add up each of the individual fines I intend to impose on the company and Mr Lin, the total fine would be excessive and disproportionate to the overall nature and extent of the offending;

4. Further, as explained in my verdict judgment, each of the offences committed by the company involved identical conduct to sustain proof of the offences against Mr Lin in his personal capacity. On a full consideration of all the evidence and my findings as set out in the verdict judgment, Mr Lin was clearly the dominant mind of the company, charged with the same offences and arising from the same conduct. He is not, however, the sole director and sole shareholder of the company. The company is limited by 1,000 ordinary shares which are beneficially held by the following individuals:

1. 60 are held by Yinzhu Yang;

2. 840 are held by Fuqing Green Leaf Agriculture Development Co Ltd;

3. 100 are held by Meiqin Chen;

5. Fuqing Green Leaf Agriculture Development Co. Ltd is domiciled in China, and Mr Lin gave evidence that he is the Managing Director and owner of that company;

6. I find that the penalty that properly reflects the overall criminality should therefore have regard to, and be informed by, the circumstance the punishment to be inflicted on the company will be because of the conduct of Mr Lin. In other words, I find the totality principle applies not only to require an adjustment to the penalties having regard to the nature and number of offences relevant to each individual offender, but also having regard to the fact that the conduct of the company and Mr Lin in proof of each of the offences against both of them was identical (see for example Environment Protection Authority v Calleija; Environment Protection Authority v Budget Waste Recycling Pty Ltd [2024] NSWLEC 119 at [311], although noting in that case that Mr Calleija was the sole director of the offending corporation. Further support for these propositions is also found in Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No. 2) [2002] FCA 559 at [45] and Leichhardt Council v Geitonia Pty Ltd (No. 7) [2015] NSWLEC 79 at [62] and [63]).

(e)   Evenhandedness

104. I now turn to considerations concerning consistency in sentencing or ‘even-handedness’.

105. As summarised in Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Robert Beltrame [2023] NSWLEC 18 at [117], while consistency of sentencing is important, the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. In seeking consistency, judges must have regard to what has been done in other cases which may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence.

106. As Preston CJ of LEC observed in Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [72], the more appropriate yardstick against which the sentence should be compared is the penalty set by Parliament, rather than the amount of fines imposed in past cases.

107. As summarised, for example, in Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd [2024] NSWLEC 63 at [129], the task of the sentencing court is nonetheless to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at [177] and R v Visconti [1982] 2 NSWLR 104 at [107]). That is, whilst this sentencing process must be undertaken in light of the specific facts and circumstances of the company’s and Mr Lin’s offending conduct, nonetheless, regard must be had to such guidance as may be obtained from such other cases as might have some degree of comparability with the offending conduct to be assessed (Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185).

108. Care must be taken, however, in comparing cases where the circumstances of, and facts relating to, the offences may be different (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365). There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280;(2001) 115 LGERA 304 at [312] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).

1. Charge 8: the company is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068277, and is fined the sum of $35,000, but which is reduced to $22,000 applying the court’s jurisdictional maximum penalty;

2. Charge 9: the company is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068281, and is fined the sum of $20,000;

3. Charge 10: the company is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068288, and is fined the sum of $17,000;

4. Charge 11: the company is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068291, and is fined the sum of $20,000;

5. Charge 12: the company is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068294, and is fined the sum of $15,000.

135. The total fine for the company will therefore be $224,000. Considering my earlier assessment of the total criminality as calling for a fine in the order of $260,000 - $280,000, it will be apparent that, in determining the individual fines that should be imposed, the company has benefitted, as it were, from the application of the court’s jurisdictional maximum penalty.

136. The appropriate sentence (after applying the totality principle) for each of the offences committed by Mr Lin is as follows:

1. Charge 1: Mr Lin is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068272, and is fined the sum of $8,750;

2. Charge 2: Mr Lin is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068289, and is fined the sum of $7,250;

3. Charge 3: Mr Lin is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068303, and is fined the sum of $4,250;

4. Charge 4: Mr Lin is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068323, and is fined the sum of $3,000;

5. Charge 5: Mr Lin is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068332, and is fined the sum of $3,750;

6. Charge 6: Mr Lin is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068343, and is fined the sum of $5,000;

7. Charge 7: Mr Lin is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068362, and is fined the sum of $12,500;

8. Charge 8: Mr Lin is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068369, and is fined the sum of $8,750;

9. Charge 9: Mr Lin is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068387, and is fined the sum of $5,000;

10. Charge 10: Mr Lin is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068400, and is fined the sum of $4,250;

11. Charge 11: Mr Lin is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068410, and is fined the sum of $5,000;

12. Charge 12: Mr Lin is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068416, and is fined the sum of $3,750.

137. The total fine for Mr Lin will therefore be $71,250.

138. As sought by the prosecutor, and consistent with the discretion recognised and explained, for example, in Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 152 at [62], pursuant to s 122(2) of the Fines Act 1996, I will make an order that one half of each of the fines imposed on the company and Mr Lin is to be paid to the prosecutor as a moiety.

139. There are 2 final matters to be addressed, being the proposed restoration and remedial orders and the proposed publication order.

140. The prosecutor seeks orders under s 353B of the WM Act for the restoration/remediation of dams 4, 5 and 9. In respect of dam 9, restoration/remediation is only sought in respect of the part of the dam that is located on the Property.

141. Section 353 of the WM Act provides that Part 3A applies where a court finds a person guilty of an offence against the WM Act. Part 3A of the WM Act governs the orders a court may make in connection with offences. The Local Court is not jurisdictionally precluded from making any of the orders which the prosecutor seeks and I reject the company’s and Mr Lin’s submissions that the orders would circumvent or fetter the approval processes of the relevant statutory authorities, such as those of Kempsey Shire Council or WaterNSW. The proposed orders take full account of these concerns. Further, the orders are not being sought or made under s 353C of the WM Act and hence the monetary jurisdictional limits of the Local Court specified therein are not relevant in this respect.

142. I am satisfied that the restoration and remedial orders contained in Exhibit 47 (tab 4) are appropriate, and should be made in the exercise of the court’s discretion, for the following reasons:

1. First, they seek to control and mitigate the decline in health of a number of Broad-leaved Paperbarks caused by the permanent inundation of water in dams 4 and 5;

2. Secondly, they seek to prevent, control, abate or mitigate the harm caused by the proliferation of environmental weeds and introduced species;

3. Thirdly, they seek to control and mitigate the harm caused by the reduction in native plants, including the clearing and degrading of an endangered ecological community, by restoring the floristic composition of each dam;

4. Fourthly, they seek to make good the damage caused by the construction and use of the dams by removing the environmental weeds and introduced species;

5. Fifthly, they seek to prevent the continuance or recurrence of the use of water supply work offences, being charges 1, 2 and 3.

143. The need for these orders is confirmed by the evidence of Ms Davis who conducted an inspection of the Property and observed that no action had been taken to return the land to its state prior to the offending conduct.

144. I reject the company’s and Mr Lin’s submissions that the proposed orders are vague and/or nebulous. The obligations they impose are clear and properly structured. I also note that similar orders were made by the Land and Environment Court in Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42 at [235]. The proposed orders do not specifically prescribe the final works to be carried out, or the precise manner of execution of those works, because they incorporate sufficient flexibility to respond to different circumstances as may arise and, put simply, are focused, in the first instance, on the preparation of a dam dewatering and deconstruction plan, as well as a vegetation management plan. I am satisfied the orders appropriately deliver a remediation and restoration process which addresses the identified environmental harms arising from the offending conduct.

145. For completeness, the evidence of Dr Cresswell does not establish that the viability of the Green Leaf farm would be undermined if the restoration/remediation orders were made. No part of Dr Cresswell’s expert opinion addressed this matter, and Ms Gainsford’s report does not reveal any reasons why the proposed restoration/remedial orders should not be made.

146. The prosecutor also seeks a publication order under s 353G(1)(a) of the WM Act requiring the company and Mr Lin to publicise the offences. The Local Court is not jurisdictionally precluded from making that order.

147. I find it is appropriate to make the publication order sought by the prosecutor, given its significant educative and deterrent function, as explained in Harris v Harrison [2014] NSWCCA 84 at [128] and in Natural Resources Access Regulator v Bao Lin Pty Limited [2022] NSWLEC 42 at [236].

148. Specifically in the context of the present case, the serious and reckless nature of the offending conduct is such that the court must facilitate delivering a message to the wider community discouraging others from engaging in conduct like that of the company and Mr Lin.

F.   ORDERS

149. The court makes the following orders:

1. The company is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068231, and is fined the sum of $22,000;

2. The company is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068235, and is fined the sum of $22,000;

3. The company is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068247, and is fined the sum of $17,000;

4. The company is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068255, and is fined the sum of $12,000;

5. The company is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068258, and is fined the sum of $15,000;

6. The company is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068266, and is fined the sum of $20,000;

7. The company is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068268, and is fined the sum of $22,000;

8. The company is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068277, and is fined the sum of $22,000;

9. The company is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068281, and is fined the sum of $20,000;

10. The company is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068288, and is fined the sum of $17,000;

11. The company is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068291, and is fined the sum of $20,000;

12. The company is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068294, and is fined the sum of $15,000;

13. Mr Lin is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068272, and is fined the sum of $8,750;

14. Mr Lin is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068289, and is fined the sum of $7,250;

15. Mr Lin is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068303, and is fined the sum of $4,250;

16. Mr Lin is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068323, and is fined the sum of $3,000;

17. Mr Lin is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068332, and is fined the sum of $3,750;

18. Mr Lin is convicted of the offence against s 91B(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068343, and is fined the sum of $5,000;

19. Mr Lin is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068362, and is fined the sum of $12,500;

20. Mr Lin is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068369, and is fined the sum of $8,750;

21. Mr Lin is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068387, and is fined the sum of $5,000;

22. Mr Lin is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068400, and is fined the sum of $4,250;

23. Mr Lin is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068410, and is fined the sum of $5,000;

24. Mr Lin is convicted of the offence against s 91E(1) of the Water Management Act 2000 (NSW) charged in proceedings number 2023/00068416, and is fined the sum of $3,750;

25. Pursuant to s 353B of the WM Act, in the proceedings against the company being proceedings no. 2023/00068231 (charge 1), 2023/00068235 (charge 2), 2023/00068247 (charge 7), 2023/00068277 (charge 8) and 2023/00068291 (charge 11), and in the proceedings against Mr Lin being proceedings no. 2023/00068272 (charge 1), 2023/00068289 (charge 2), 2023/00068303 (charge 3), 2023/00068362 (charge 7), 2023/00068369 (charge 8) and 2023/00068410 (charge 11), the company and Mr Lin (the Parties) are, jointly and severally, to take the following steps:

1. By no later than 6 weeks after this order is made, or such further time as permitted in writing by the Natural Resources Access Regulator (NRAR), the parties must provide to NRAR, for its approval, the name of a suitable third party or parties (Provider) they propose to engage for the preparation of a dam dewatering and deconstruction plan for dams 4, 5 and 9, as identified on the map at Annexure “A” to this order, located as 2302 Pacific Highway, Clybucca NSW 2440, Lot 1013 DP849060, and the completion of the works (Works) set out in the plan. The Provider must have geotechnical engineering qualifications with expertise in dam dewatering and deconstruction, including implementing controls to prevent contaminated water from entering the surrounding area;

2. If the NRAR does not approve the proposed Provider under this Order 25, the Parties must, within 3 weeks of that non-approval being communicated, or such further time as permitted in writing by the NRAR, provide to the NRAR for its approval the name of an alternative Provider they propose to engage;

3. By no later than 3 months after approval is provided by the NRAR under this Order 25, or such further time as permitted in writing by the NRAR, the Parties must provide to the NRAR for its approval a dam dewatering and deconstruction plan (Plan) prepared by the approved Provider. The Plan must provide for the following to be completed within a timeframe of 12 months of approval of the Plan:

1. Testing of water contained within dams 4 and 5 for contamination including excessive nutrients, sediments, metals, toxins, agricultural chemicals and pollutants that may be harmful to the surrounding environment;

2. Identification of any noxious or environmental aquatic weeds within dams 4 and 5 by a suitably qualified botanist or ecologist;

3. Staged de-watering and disposal of water contained in dams 4 and 5, with any contaminated water to be disposed offsite;

4. Controls to treat and prevent any contaminated water entering the areas surrounding dams 4 and 5 which include the wetlands and the Clybucca Aboriginal area;

5. Controls to treat and safely remove and/or destroy declared noxious or environmental aquatic weeds and prevent them from entering the areas surrounding dams 4 and 5 which include the wetlands and the Clybucca Aboriginal area;

6. Total removal of the dam wall for dams 4 and 5.

7. Retention of soil from the dam 4 and dam 5 walls on the Property;

8. Filling of the borrow pits in dam 4 and 5 (that is, any pits from which material has been excavated to construct the dam walls) with soil retained from the dam 4 and 5 walls;

4. Installation of and effective maintenance of extensive and long-term sediment controls downslope of the dam walls for dams 4 and 5;

5. Filling of dam 9, so far as it occurs on the Property, with soil retained from the dam 5 wall;

6. A timeline from approval of the Plan until the completion of all Works in the Plan, including the obtaining of any necessary statutory approvals, licences or consents (however described) for the Works;

7. A plan for the adoption of precautions to protect and identify any Aboriginal object (as defined in the National Parks and Wildlife Act 1974 (NSW) (NPW Act) uncovered during the Works, and the conservation of any identified Aboriginal objects, consistent with the NPW Act;

8. If the NRAR does not approve the Plan, the Parties must, within 6 weeks of that non-approval being communicated, or such further time as permitted in writing by the NRAR provide a further plan in accordance with the Order 25 for the NRAR’s approval addressing any reasonable requirements of the NRAR;

9. Once approval of the Plan is given by the NRAR, the Parties must complete all works outlined in the Plan (Works) within the Plan’s timeline, and by no later than 18 months after the Plan is approved;

10. On the first Monday of each month after the Plan is approved by the NRAR and until a final report is issued under this Order 25, the Parties must provide the NRAR with a report on the progress of the Works, which is to include details of all steps taken by the Parties and the Provider to progress the Works and the dates on which these steps occurred;

11. Upon completion of the Works, the Parties must provide the NRAR with a final report from the Provider verifying the completion of the Works;

12. If an application for an approval, licence or consent (however described) is required to complete the Works, the Parties must:

1. Inform the NRAR than an approval, licence or consent is required;

2. Make any necessary application for approval, licence or consent that is limited to that which is necessary to complete the Plan;

3. Inform NRAR if any application is refused;

4. Within 4 weeks of a refusal, or such other time as permitted by NRAR in writing, provide a modified Plan for NRAR’s approval;

13. By no later than 3 weeks after the approval of the Plan, or such further time as permitted in writing by the NRAR, the Parties must provide to the NRAR, for its approval, the name of a suitable third party or parties (Vegetation Provider) it proposes to engage for the preparation of a vegetation management plan (VMP) and the completion of the works (VMP Works) set out in that plan. The Vegetation Provider, such as a wetland restoration specialist, ecologist, and/or environmental consultant, must have expertise in wetland restoration;

14. If the NRAR does not approve the proposed Vegetation Provider under this Order 25, the Parties must, within 3 weeks of that non-approval being communicated, or such further time as permitted in writing by the NRAR, provide to the NRAR for its approval the name of an alternative Vegetation Provider they propose to engage;

15. By no later than 3 months after approval is provided by the NRAR under this Order 25, or such further time as permitted in writing by the NRAR, the Parties must provide to the NRAR for its approval a Vegetation Management Plan for dams 4, 5 and 9 (VMP), prepared by the approved Vegetation Provider. The purpose of the VMP is to restore the vegetation and floristic composition of dam 4 and 5, and dam 9 so far as occurs on the Property, to their condition prior to construction. The VMP must provide for the following to be commenced within 1 month of completion of the Plan, and be completed within a timeframe of 18 months of completion of the Plan:

1. The removal and disposal of all noxious weeds;

2. The identification, treatment and management of acid sulphate soils;

3. Re-vegetation of the sites with a suitable mixture of native species endemic to the area prior to construction;

4. Follow-up monitoring of the site to include weed removal and replanting of vegetation to maintain at least a 70% survival rate after 1 year from planting;

1. A timeline for the completion of all VMP Works, ongoing monitoring, and the obtaining of any necessary statutory approvals, licences or consents (however described) for the VMP Works;

2. A plan for the adoption of precautions to protect and identify any Aboriginal object (as defined in the NPW Act) uncovered during the VMP Works, and the conservation of any identified Aboriginal objects consistent with the NPW Act;

16. If the NRAR does not approve the VMP, the Parties must, within 6 weeks of that non- approval being communicated, or such further time as permitted in writing by the NRAR provide a further VMP in accordance with this Order 25 for the NRAR’s approval;

17. The Parties must complete the VMP Works within the VMP’s timeline and by no later than 18 months after the VMP is approved, or such further time as permitted in writing by the NRAR;

18. If an application for an approval, licence or consent (however described) is required to complete the Vegetation Works, the Parties must:

1. Inform the NRAR than an approval, licence or consent is required;

2. Make any necessary application for approval, licence or consent that is limited to that which is necessary to the complete the Vegetation Works;

3. Inform NRAR if any application is refused;

4. Within 4 weeks of a refusal, or such other time as permitted by NRAR in writing, provide a modified plan for NRAR’s approval;

19. Every 6 months after the VMP is approved and until a final report is issued under this Order 25, and as requested by the NRAR from time to time, the Parties must provide the NRAR with a report on the progress of the VMP Works, which is to include details of all steps taken by the Parties and the Vegetation Provider to progress the VMP Works and the dates on which these occurred;

20. Upon completion of the VMP Works, the Parties must provide the NRAR with a final report from the Vegetation Provider verifying completion of the VMP Works;

26. The Parties must provide information or documents to the NRAR, as required by these orders, via: [email protected]

27. For the avoidance of doubt, where one of the Parties complies with an order made herein, the other party shall be deemed to have complied with that order;

28. Should the Parties exercise their entitlement under s 353B of the Water Management Act 2000 (NSW) to apply for further time to take the steps specified in Order 25, they have liberty to so apply on 3 days’ written notice;

29. Pursuant to s 353G(1)(a) of the WM Act, the company and Mr Lin must, within 28 days of this order and at their own expense, cause an advertisement to be published in the terms of Annexure “B” to this order in the digital and print versions of the following publications at the minimum size specified below for the print edition (and of corresponding size in the digital edition) in the next available edition and within the first 10 pages of:

1. Port Macquarie News (186mm H x 129mm W);

2. Manning River Times at Taree (186mm H x 129mm W); and

3. The Macleay Argus (186mm H x 129mm W).

30. Within 30 days of the date of publication of the advertisement referred to in Order 29, the company and Mr Lin must provide to the prosecutor a complete copy and screenshot of the entire page of the advertisement in the publications in which it appears;

31. It is sufficient for compliance with Orders 29 and 30 if one or other of the company and Mr Lin causes the relevant advertisement to be published and advises the prosecutor of their publication;

32. Pursuant to s 215 of the Criminal Procedure Act 1986, the company and Mr Lin are, jointly and severally, to pay the prosecutor’s professional costs in the sum of $155,000;

33. Pursuant to s 122(2) of the Fines Act 1996, one half of each of the fines imposed on the company and Mr Lin is to be paid to the prosecutor.

ANNEXURE “A”

ANNEXURE “B”

Irrigator sentenced for construction and use of unlawful dams

Green Leaf Australia Group Pty Ltd (“Green Leaf”) (ACN: 161 543 344) and its director, Mr Xiuming Lin, were each sentenced before the Local Court of New South Wales on 27 February 2025 for 12 offences in breach of the Water Management Act 2000 (“the WM Act”) relating to the construction and use of dams without the required approvals at a commercial farm in the Kempsey region. Green Leaf was convicted and fined a total of $224,000. Mr Lin was convicted and fined a total of $71,250. The offenders were also ordered to undertake remediation works.

NRAR’s investigation and prosecution

The sentencing follows an investigation by the Natural Resources Access Regulator (“NRAR”), in which Green Leaf and Mr Lin were each found guilty of:

• Using four unauthorised dams without a water supply work approval (four offences against s 91B(1) of the WM Act);

• Constructing unauthorised extensions to two dams without a water supply work approval (two offences against s 91B(1) of the WM Act); and

• Removing material from a wetland without a controlled activity approval (six offences against s 91E(1) of the WM Act).

The offences occurred between 6 October 2016 and 25 February 2021. Some of the offences occurred within the Clybucca Aboriginal area, and some of the offences caused actual harm to the environment, including listed Endangered Ecological Community freshwater wetlands.

Reminder to water users

All property owners, occupiers, contractors, and water users should be aware that there are serious consequences for committing offences against the WM Act. The NRAR undertakes auditing and investigations to ensure that activities affecting water sources and involving the extraction of water are authorised and in line with the principles of the WM Act and the welfare of the environment.

Decision last updated: 16 May 2025