Natural Resources Access Regulator v Jindalee Road Wines Pty Ltd

[2024] NSWLEC 26

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Natural Resources Access Regulator v Jindalee Road Wines Pty Ltd; Littore [2024] NSWLEC 26

Hearing dates:

30 November 2023

Date of orders:

27 March 2024

Decision date:

27 March 2024

Jurisdiction:

Class 5

Before:

Duggan J

Decision:

See paragraph 81

Catchwords:

SENTENCING – environmental crime – offences against ss 342(1)(a) and 343(1) of Water Management Act 2000 – damaging or interfering with any work owed or under control of irrigation corporation – taking water from water supply work without authorisation – objective seriousness of offences – sentencing principles – general and specific deterrence – totality – jurisdictional limit of the Local Court – order for moiety against s 122 of Fines Act 1996

Legislation Cited:

Crimes (Sentencing and Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Fines Act 1996 (NSW)

Water Management Act 2000 (NSW)

Cases Cited:

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

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

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

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

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

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299

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

Markarian v The Queen (2005) 228 CLR 357

Pearce v The Queen (1998) 194 CLR 610

R v Visconti (1982) 2 NSWLR 104

Category:

Sentence

Parties:

In proceedings 2023/00078671; 2023/00078672; 2023/00078673; 2023/00078674
Natural Resources Access Regulator (Prosecutor)
Jindalee Road Wines Pty Ltd (Defendant)

In proceedings 2023/00078917; 2023/00078918; 2023/00078919; 2023/78920
Natural Resources Access Regulator (Prosecutor)
David Littore (Defendant)

Representation:

Counsel:
J Single SC and A Brown (Prosecutor)
K H Averre (Defendants)

Solicitors:
Crown Solicitor’s Office (Prosecutor)
Hunt & Hunt Lawyers (Defendants)

File Number(s):

2023/00078671; 2023/00078672; 2023/00078673; 2023/00078674; 2023/00078917; 2023/00078918; 2023/00078919; 2023/78920

Publication restriction:

No

JUDGMENT

Nature of proceedings

1. The Prosecutor has charged Jindalee Road Wines Pty Ltd (Jindalee Wines) and David Littore (Mr Littore) (together, the Defendants) with four charges each, relating to works in connection with water infrastructure and the taking water contrary to the Water Management Act 2000 (NSW) (WM Act). The Defendants have entered pleas of guilty to each offence and come before me for sentencing.

2. The Defendants were charged with the following offences:

Jindalee Wines

1. Proceedings 2023/00078671 – between about 13 May 2019 and 31 October 2019, at 111 Bernarra Road, Coomealla (Premises 1), Jindalee Wines committed an offence against s 342(1)(a) of the WM Act in that it destroyed, damaged or interfered with a work that was owned by or was under the control and management of an irrigation corporation (Premises 1 Infrastructure Offence – Jindalee Wines);

2. Proceedings 2023/00078672 – between about 23 May 2016 and 31 December 2016, at 325 River Road, Coomealla (Premises 2), Jindalee Wines committed an offence against s 342(1)(a) of the WM Act in that it destroyed, damaged or interfered with a work that was owned by or was under the control and management of an irrigation corporation (Premises 2 Infrastructure Offence – Jindalee Wines);

3. Proceedings 2023/00078673 – between 1 July 2018 and 30 June 2020 inclusive, at Premises 2, Jindalee Wines committed an offence against s 343(1) of the WM Act in that it took water from a water supply owned by or under the control and management of an irrigation corporation, without the authority of that irrigation corporation (Premises 2 Water Take Offence – Jindalee Wines); and

4. Proceedings 2023/00078673 – between 1 July 2019 and 30 June 2020 inclusive, at Premises 1, Jindalee Wines committed an offence against s 343(1) of the WM Act in that it took water from a water supply owned by or under the control and management of an irrigation corporation, without the authority of that irrigation corporation (Premises 1 Water Take Offence – Jindalee Wines).

David Littore

1. Proceedings 2023/00078917 – between about 13 May 2019 and 31 October 2019, at Premises 1, Mr Littore committed an offence against s 342(1)(a) of the WM Act in that he destroyed, damaged or interfered with a work that was owned by or was under the control and management of an irrigation corporation (Premises 1 Infrastructure Offence – Littore);

2. Proceedings 2023/00078918 – between about 23 May 2016 and 31 December 2016, at Premises 2, Mr Littore committed an offence against s 342(1)(a) of the WM Act in that he destroyed, damaged or interfered with a work that was owned by or was under the control and management of an irrigation corporation (Premises 2 Infrastructure Offence – Littore);

3. Proceedings 2023/00078919 – between 1 July 2018 and 30 June 2020 inclusive, at Premises 2, Mr Littore committed an offence against s 343(1) of the WM Act in that he took water from a water supply owned by or under the control and management of an irrigation corporation, without the authority of that irrigation corporation (Premises 2 Water Take Offence – Littore); and

4. Proceedings 2023/00078920 – between 1 July 2019 and 30 June 2020 inclusive, at Premises 1, Mr Littore committed an offence against s 343(1) of the WM Act in that he took water from a water supply owned by or under the control and management of an irrigation corporation, without the authority of that irrigation corporation (Premises 1 Water Take Offence – Littore).

Facts

3. The parties relied upon an extensive Statement of Agreed Facts (SOAF) filed 18 August 2023 identifying those facts admitted by the Defendants. The most relevant facts are extracted below.

Western Murray Irrigation Limited

4.   The relevant irrigation corporation for each offence is Western Murray Irrigation Limited (WMI).

7.   WMI is a non-profit organisation with its core objective being to "supply water to customers".

8.   WMI has ownership, control and management over infrastructure which supplies water to the points of supply on individual properties, including the main supply lines, meters, and valves.

9.   The customers of WMI are generally irrigators who are supplied with water from one of the three irrigation supply systems operated by WMI. WMI has over 450 customers across the irrigation districts of Curlwaa, Coomealla and Buronga.

10.   WMI has contracts with its customers, which include requirements that, to be supplied water, the benefitted landholding must be fitted with an individual outlet. Customer responsibilities include:

a.   placing and adhering to water orders (customers must place valid water orders prior to water being taken from the irrigation system); and

b.   customers are not allowed to tamper with the operation of any outlet.

12.   WMI delivers water to its customers through WMI infrastructure up to the customer's offtake point. WMI's supply line and associated works, including the WMI meter, are situated at a point prior to the customer infrastructure.

The properties

13.   The offences occurred on two properties located at:

a.   111 Bernarra Road, Coomealla NSW, and specifically Lot 621 of Deposited Plan 756961 (Premises 1); and

b.   325 River Road, Coomealla NSW, and specifically Lot 637 of Deposited Plan 756961, consolidated into Lot 3 of Deposited Plan 1250283 on 5 February 2019 (Premises 2).

Premises 1

16.   Boronia Farms Aus Pty Ltd ACN 619 897 362 (Boronia Farms) acquired Premises 1 on 3 April 2019 from Saroop and Armit Hayer. Prior to this, Boronia Farms had working possession of Premises 1 from October 2018 until settlement in April 2019. During this period, Boronia Farms sublet the premises to Jindalee Road Wines, with David Littore running the farm as an employee of Jindalee Road Wines. After settlement, Boronia Farms leased Premises 1 to Jindalee Road Wines through an undocumented lease agreement.

17.   WMI Outlet 23431 (Outlet 23431) is on and irrigates Premises 1 and also irrigates WMI Farm 344.

Premises 2

18.   Prior to 5 February 2019, Premises 2 consisted of three lots including Lot 637 of Deposited Plan 756961, which was owned by Coomealla Investments Pty Ltd ACN 615 917 514 (Coomealla Investments). Coomealla Investments acquired Lot 637 of Deposited Plan 756961 on 14 December 2016from Suzanne Lane.

19.   On 14 December 2016, Coomealla Investments entered into a lease agreement with Jindalee Road Wines in respect of Lot 637 of Deposited Plan 756961. The lease agreement ended on 13 December 2019.

20.   On 5 February 2019, a plan of subdivision of Lot 637 DP 756961, Lot 1149 of DP 720498 (both owned by Coomealla Investments) and Lot 640 of DP 756961 (owned by Casella Wines Pty Ltd ACN 060 745 315 (Casella Wines)), was registered at Land Registry Services NSW. Following subdivision, three new lots were created, including Lot 3 of Deposited Plan 1250283, which constitutes Premises 2 after 5 February 2019.

21.   At the relevant time, Lot 3 of Deposited Plan 1250283 was owned by Coomealla Investments and Casella Wines and was leased to Jindalee Road Wines upon the registration of the plan of subdivision.

22.   The WMI outlet that is physically located on Premises 2 (Outlet 23571) irrigates Premises 2, and also irrigates WMI Farm 434.

23.   Outlet 23571 was moved, and then renumbered as Outlet 23581 after 30 July 2020.

The defendants' use of Premises 1 and 2

24.   At the relevant times, Jindalee Road Wines was the lessee of Premises 1 and 2. Jindalee Road Wines paid electricity costs for Premises 1 and 2.

25.   At the relevant times David Littore was employed by Jindalee Road Wines as Farm Manager at Premises 1 and Premises 2. As Farm Manager at Premises 1 and 2, he was responsible for general cropping duties including fertilisation, weed control, irrigation and management of other workers involved in the growing of grape vines on the properties As Farm Manager, David Littore was also responsible for handling "all water matters". At the relevant times, Premises 1 and Premises 2 were used to grow wine grapes.

Water Allocation Accounts

26.   A Water Allocation Account (WAA) is the means through which water is allocated amongst different farms owned by the same legal entity.

27.   Boronia Farms held a WM with WMI for Premises 1

28.   Coomealla Investments and Casella Wines held a joint WM with WMI for Premises 2.

29.   The lessee of Premises 1 and 2 - Jindalee Road Wines - paid for the water and use the water delivered by WMI for irrigation purposes.

Water Entitlement Agreements

30.   A water entitlement provides a WMI customer with the right to an allocation of water, in circumstances where WMI has been supplied with an allocation. A Water Entitlement Agreement (WEA) refers to the customer's water allocation per relevant water entitlement.

31.   Boronia Farms held a WEA with WMI for Premises 1.

32.   Casella Wines and Coomealla Investments each held WEA's with WMI for Premises 2.

Water Delivery Agreements

33.   A Water Delivery Agreement (WDA) refers to the conditions concerning the customer's delivery of water entitlements.

34.   Boronia Farms held a WDA with WMI for Premises 1.

35.   Casella Wines and Coomealla Investments each held WDA's with WMI for Premises 2.

36.   The WDAs for both Premises 1 and 2 required that the "delivery of water by [WMI] to the landholding must, where required by [WMI], be measured by a Meter which must be installed and commissioned in accordance with the Company's design requirements".

The supply and irrigation of water at Premises 1 and 2

37.   Premises 1 and 2 were supplied with water by WMI through WMI supply pipelines. WMI supplies water by operating a main pump station and a re-lift station which services the Coomealla irrigation district. The main pump station lifts water from the Murray River and runs it to individual points of supply on the properties through a fully pressurised pipeline network.

38.   Premises 1 and 2 utilise on-farm pumps, pipes and drip components located beyond the WMI outlets to irrigate wine grape vines by a drip system using water supplied by WMI. Only the WMI outlets were used to irrigate crops on Premises 1 and 2.

The offending conduct- sequences 1 and 2 pursuant to s. 342(1)(a) of the WM Act

39.   At Premises 1, sometime between about 13 May 2019 and 31 October 2019, Mr Littore installed, or permitted or caused the installation of infrastructure intended to bypass the WMI meter at Outlet 23431 (bypass infrastructure). The bypass infrastructure consisted of:

a.   at a depth of approximately 800mm, a 150mm PVC pipe which had a 90 degree bend down to a tapping saddle attached and connected to a 200mm PVC pipe, being WMl's irrigation supply pipeline; and

b.   a stainless-steel manifold located near the pump shed, which connected to irrigation infrastructure at a point downstream from the WMI outlet meter (and otherwise connected to the tapping pipework).

40.   The bypass infrastructure was operated by valves installed at a point downstream from the WMI outlet meter. The defendants had also installed a meter pump, which allowed water to be pumped from the infrastructure. When the meter pump was switched on water would - depending upon the configuration of the valves - either flow via the pipework on which the WMI meter was installed, or alternatively flow via the bypass infrastructure (in which case the flows were not captured on the WMI meter). The water taken through the bypass infrastructure was capable of being measured by a private mag meter installed by the defendants at a point downstream from the WMI meter. Shortly put, the operation of the bypass infrastructure enabled the defendants to take water from the WMI supply pipeline without it being metered by the WMI outlet meter.

42.   At Premises 2, sometime between about 23 May 2016 and 31 December 2016, Mr Littore installed, or permitted or caused the installation of, infrastructure intended to bypass the WMI meter at Outlet 23571. The bypass infrastructure consisted of:

a.   a number of pipes, including a 150mm pipe at around 800mm deep with a 90 degree bend which continued down to around 1200mm where it was attached via saddle to a 200mm PVC pipe, being the WMI main supply pipeline;

b.   a stainless-steel manifold located near the pump shed (at a point downstream from the WMI outlet meter) and was otherwise connected to the tapping pipework.

43.   The bypass infrastructure was operated by valves installed at a point downstream from the WMI outlet meter. The defendants had also installed a meter pump, which allowed water to be pumped through the bypass infrastructure. When the meter pump was switched on water would - depending upon the configuration of the valves - either flow via the pipework on which the WMI meter was installed, or alternatively flow via the bypass infrastructure (in which case the flows were not captured on the WMI meter). The water taken through the bypass infrastructure was capable of being measured by a private mag meter installed by the defendants at a point downstream from the WMI meter. As with Premises 1, the operation of the bypass infrastructure enabled the defendants to take water from the WMI supply pipeline without it being metered by the WMI outlet meter.

45.   The defendants were not authorised to install tap-ins or to damage or interfere with the WMI supply line at either Premises 1 or Premises 2.

48.   In each case, the bypass infrastructure was installed for the sole purpose of allowing water to be taken in an unmetered fashion from the WMI supply line.

Offending conduct - sequences 3 and 4 pursuant to s. 343(1) of the WM Act

49.   The defendants did not seek authorisation for (and nor did WMI authorise) the taking of water otherwise than through the WMI meters on Premises 1 and Premises 2.

50.   In response to a statutory notice issued by NRAR, David Littore indicated that:

a.   he was able to measure the volume of metered water taken at Premises 1 from around October 2019 after he installed and utilised a private mag meter on the property at a point downstream from the WMI meter.

b.   he was able to measure the volume of metered water taken at Premises 2 from around September 2018 after he installed and utilised a private mag meter on the property at a point downstream from the WMI meter.

c.   during the "growing season" both metered and unmetered water was used to irrigate wine grapes on Premises 1 and Premises 2.

d.   between 1 July 2019 and 31 March 2020 (shortly after the tap-ins were located and identified by WMI staff), a total of 261ML of water had been taken at Premises 1. David Littore confirmed that only 157.819 ML of water had flowed through Outlet 23431, and therefore 104ML had been diverted away and was taken unmetered.

e.   in the 2018/2019 water year, 414ML of water was taken from Premises 2. David Littore provided that 276ML was recorded by the WMI meter at Outlet 23571, and therefore 138ML was unmetered by the WMI meter.

f.   between 1 July 2019 to 31 March 2020, 396.607ML of water was taken from Premises 2. David Littore indicated that 273.63ML was recorded by the WMI meter through Outlet 23571, and therefore 122.977ML was unmetered by the WMI meter.

51.   Dr Wayne Meyer, an agronomist engaged as an expert on behalf of the prosecutor, estimated the water use at Premises 1 and 2. Dr Meyer came to the following conclusions about estimated water use at each premises:

Water Year	Location	Dr Meyer's Estimated Quantum	Sequence	Quantum provided by David Littore
2018/2019	Premises 2	383 ML	3	414 ML
2019/2020	Premises 1	249 ML	4	261 ML
2019/2020	Premises 2	418 ML	3	396.607 ML

52.   These estimates were not inconsistent with David Littore's admissions as to total water used, as recorded on the private mag meters installed downstream from the WMI outlet. That is, Dr Meyer's estimates support the proposition that the private mag meters captured both water that flowed via (and was accordingly recorded on) the WMI meter and also water that flowed via the bypass infrastructure (and was not recorded on the WMI meter).

Detection of the offending

55.   WMI conducts quarterly reconciliations of field meter readings from meters at the on­farm outlets and pump station meter readings at the point of extraction from the Murray River. Historically, the fleet of WMI field meters in the Coomealla Irrigation area have recorded higher readings than the main pump station meter. This trend had progressively been reversing since the 2016/2017 water year (when there was 716ML greater usage on the field meters) up to the 2019/2020 water year (when there was 527ML less usage on the field meters to February 2020).

…

56.   WMI could not identify a reason for the reversal, other than believing that the inconsistencies may have been as a result of an ageing mechanical field meter fleet. In an attempt to resolve the discrepancy, WMI replaced its fleet of field meters commencing from 2018/2019; however the discrepancy not only remained but became more pronounced.

57.   On 26 February 2020, WMI employee Wes Marks noted that Outlet 23621 was fully operational, when it had previously been reported by David Littore that it was not in use. As a result, WMI reviewed the water usage all of the properties managed by David Littore.

58.   Further investigation of WMI's records indicated that, in the 2018/2019 water year, Outlet 23431 (on Premises 1) had recorded 322.41ML of usage to 19 March 2019, whereas in the 2019/2020 water year, usage to 13 February 2020 showed only 116.3ML usage recorded at Outlet 23431.

WMI employee site inspections and discovery of alleged illegal tappings

59.   On 12 March 2020, WMI employees inspected Premises 1 and 2. They observed "fresh or recent ground works" near to the WMI pipework at both properties.

Premises 1 site inspection by WMI

60.   On 13 March 2020, WMI employees conducted a further inspection of Outlet 23431 and performed a validation test on the Aquamonix meter installed at the site. During the inspection, WMI employees observed an extra valve attached to the suction filter. They considered this valve to be out of the ordinary.

61.   On 17 March 2020, WMI employees conducted a further inspection of Outlet 23431. During the inspection a flow test was conducted. A flow test measures volumetric flows of liquid within a pipe. The flow test indicated that unmetered water was flowing into the pipelines from another location (the flow rate downstream from the WMI outlet meter was higher than the flow rate recorded on the WMI outlet meter).

62.   On 18 March 2020, WMI employees returned to Outlet 23431 with earthmoving equipment. The WMI employees used the earthmoving equipment to expose the WMI irrigation supply pipeline on the property, roughly 4 metres from the intake point of the WMI outlet meter.

63.   At a depth of approximately 800mm, WMI employees identified a 150mm PVC pipe which had a 90 degree bend down to a tapping saddle attached and connected to a 200mm PVC pipe, being WMI's irrigation supply pipeline…

64.   A 150mm pipe was traced back to a stainless-steel manifold located near the pump shed, downstream from the WMI outlet meter.

65.   Before leaving the site, WMI staff installed security fencing around the excavated area where the tapping had been exposed and shut off the water supply to Outlet 23431.

66.   On 21 April 2020, Ms Damiani, CEO of WMI attended a meeting with David Littore at Premises 1. In relation to the offending, Ms Damiani asked David Littore, "Why did you do this?" David Littore responded, "My wife asks me the same question".

67.   The following day, Ms Damiani received a phone call from David Littore. Ms Damiani noted the following:

David Littore called to thank us for the meetings and site visit and to answer my question having thought about it overnight. He explained that is was [sic] a bad decision but when he bought the property 4-5 years ago Rabobank was chasing him hard and under pressure made some poor decisions. He apologised and asked that it be conveyed to the board and staff (refer to hand note on Deed implementation meeting 21 April 2020 JD notes Page 3).

Premises 2 site inspection by WMI

68.   On 18 March 2020, WMI attended Outlet 23571 at Premises 2 with an excavator. Using the excavator, a WMI staff member exposed the WMI main supply pipeline on the property, roughly 3 metres from the intake point of the WMI outlet meter.

69.   The excavation exposed a number of pipes were exposed, including a 150mm pipe at around 800mm deep with a 90-degree bend which continued down to around 1200mm where it was attached via a tapping saddle to a 200mm PVC pipe, being the WMI main supply pipeline…

70.   WMI then traced the 150mm PVC pipe and found it to be connected to a stainless-steel manifold downstream from the WMI outlet meter, similar to the bypass infrastructure at Premises 1.

71.   WMI staff installed security fencing around the excavated area and shut off the water supply to Outlet 23571.

Notification to NRAR

72.   On 18 March 2020, Ms Damiani notified the Natural Resources Access Regulator (NRAR) that WMI had uncovered what were believed to be unauthorised tap-ins into their irrigation infrastructure and, via that infrastructure, unauthorised water use in the Coomealla Irrigation Area.

NRAR Investigation

73.   On 2 June 2020, NRAR investigators (Investigators) attended the WMI Coomealla Irrigation District depot and conducted an inspection of the pumps.

Premises 1 site inspection by NRAR Investigators

74.   The Investigators then proceeded to Premises 1, along with employees of WMI. David Littore was also present at Premises 1.

75.   Once at Premises 1, the Investigators observed and photographed the excavated area surrounded by security fencing which contained the bypass infrastructure.

77.   The Investigators conducted flow testing on the two PVC pipes using a flow meter, which they recorded. This flow testing indicated that water could be diverted from the WMI main supply pipeline via the unauthorised tapping.

78.   At one point, while testing the flow through the upper pipe (the tapping), David Littore assisted Investigators by operating a valve, causing water to flow through the upper pipe. This assistance was voluntary and came at a time after David Littore had been cautioned.

79.   The manufacturer of the tapping pipework at Premises 1 subsequently advised the Investigators that the pipe manufacture date was 13 May 2019.

Premises 2 site inspection by NRAR Investigators

80.   The Investigators then proceeded to Premises 2…

via a flow meter indicated that water could be diverted from the WMI main supply pipeline via the tapping in a manner materially similar to what had been observed at Premises 1.

82.   The manufacturer of the pipework subsequently advised the Investigators that the pipework had a manufacture date of 23 May 2016.

Involvement of David Littore

83.   At the relevant times, David Littore was the Farm Manager for Jindalee Road Wines and was responsible for "watering" and "management of workers" at both Premises 1 and 2.

84.   David Littore was either directly responsible for the interference with WMI's works, or he caused, or counselled or procured another or others to carry out the interference for the purposes of s. 347 of the WM Act.

85.   Because he either caused, counselled or procured the interference, David Littore was aware of the tappings before their discovery in March 2020 and had utilised the bypass infrastructure to take unmetered water with the intention that Jindalee Road Wines would not have to pay for the water taken unmetered.

Involvement of Jindalee Road Wines

86.   Jindalee Road Wines is responsible for the actions of its employees.

87.   In response to a statutory notice issued on behalf of NRAR, Jindalee Road Wines indicated that:

a.   Jindalee Road Wines had agreements with the landholders by which Jindalee Road Wines would pay water accounts from WMI and organise trades in and out;

b.   Sharyn Littore "as admin person, handles paperwork";

c.   In response to questions as to whether Jindalee Road Wines knows who installed the illegal tappings at Premises 1 and 2, Jindalee Road Wines' response was in each case "This is a question to be directed to David Littore";

d.   Jindalee Road Wines accepts that the illegal tappings on Premises 1 and 2 allowed water to be taken unmetered from WMI's main irrigation supply pipeline;

e.   In response to questions about the volume of unmetered water taken at Premises 1 and 2, Jindalee Road Wines' response was that "David Littore manages all aspects of irrigation and would understand the frequency";

f.   Jindalee Road Wines was benefitting financially from the cropping activities on Premises 1 and Premises 2 and was covering expenses.

88.   Directed interviews with Thomas Littore, Vincent Littore and Sharyn Littore conducted pursuant to s. 338B of the WM Act with representatives for Jindalee Road Wines confirmed the role of David Littore at Jindalee Road Wines, and the extent of his responsibilities.

89.   Thomas Littore, director of Jindalee Road Wines at the relevant time, indicated that:

a.   David Littore was the Vineyard Operations Manager and controlled all operations of the vineyard, including the growing of grapes, the maintenance of equipment, irrigation and the water meters. David Littore ran the most significant part of the business and was running the day-to-day operations.

b.   If unmetered water were taken, it would allow Jindalee Road Wines to save substantial amounts of money in water charges.

c.   As part of David Littore's role in the company, he would have known the frequency of any unmetered water take.

90.   Vincent Littore, who was appointed director of Jindalee Road Wines on 20 October 2020, indicated that:

a.   David Littore was responsible for irrigation practices and farm management more generally.

b.   He knew that it was David Littore that was involved in the "repair", on the basis that it was within David Littore's area of responsibilities.

c.   He accepted that there were two illegal tappings into WMI infrastructure at Premises 1 and 2 which allowed the taking of unmetered water.

91.   Sharyn Littore, director and secretary of Jindalee Road Wines at the relevant time, indicated that:

a.   David Littore had been an employee of Jindalee Road Wines since it started.

b.   David Littore's role was "running the farms".

c.   She did not know about David Littore's day-to-day operations in relation to Jindalee Road Wines. David Littore was responsible for the farming side of the operation. He did not report to anyone. He was solely responsible for irrigation.

92.   While David Littore was not a director of Jindalee Road Wines, he controlled the irrigation operations of Jindalee Road Wines, and he was responsible for adhering to its relevant statutory obligations. Acting within his unreserved remit as the Farm Manager, Mr Littore did not adhere to those obligations, but breached them to the financial benefit of Jindalee Road Wines.

Statutory provisions

4. At the time of offending, the relevant statutory provisions of the WM Act creating the offences were:

1. In relation to the Infrastructure Offences, s 342(1)(a) of the WM Act, which provides:

342   Destruction, damage and interference with certain works

(1)   A person must not destroy, damage or interfere with—

(a)   any work that is owned by, or is under the control and management of, the Minister, the Ministerial Corporation, a water supply authority, an irrigation corporation, a private irrigation board, a private drainage board or a private water trust, or

…

Tier 2 penalty.

2. In relation to the Water Take Offences, s 343(1) of the WM Act, which provides:

343   Taking water from public or private works

(1)   A person must not take water from any water supply work that is owned by, or is under the control and management of, the Minister, the Ministerial Corporation, a water supply authority, an irrigation corporation, a private irrigation board, a private drainage board or a private water trust, except with the authority of the Minister, that corporation, board, authority or trust.

Tier 2 penalty.

Sentencing principles

The purposes of sentencing

5. The purposes of sentencing are contained in s 3A of the Crimes (Sentencing and Procedure) Act 1999 (NSW) (CSP Act):

3A   Purposes of sentencing

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

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

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

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

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

(f)   to denounce the conduct of the offender,

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

Statutory matters required to be taken into account in sentencing

6. In this matter the following factors as provided for in s 21A of the CSP Act are relevant:

21A   Aggravating, mitigating and other factors in sentencing

(1)   General In determining the appropriate sentence for an offence, the court is to take into account the following matters—

(a)   the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b)   the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c)   any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

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

…

(n)   the offence was part of a planned or organised criminal activity,

(o)   the offence was committed for financial gain,

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

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

…

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

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

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

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

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

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

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

…

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

…

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

22    Guilty plea to be taken into account for offences not dealt with on indictment

(1)   In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account—

(a)   the fact that the offender has pleaded guilty, and

(b)   when the offender pleaded guilty or indicated an intention to plead guilty, and

(c)   the circumstances in which the offender indicated an intention to plead guilty,

and may accordingly impose a lesser penalty than it would otherwise have imposed.

(1A)   A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

…

23   Power to reduce penalties for assistance provided to law enforcement authorities

(1)   A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

7. It is to be noted that where the Prosecutor contends that a particular sentencing consideration should be treated as an aggravating factor, it must establish beyond a reasonable doubt the presence of such aggravating factor. Where the Defendants contend for the presence of a mitigating factor, it must be established on the balance of probabilities: Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [131].

Objective seriousness of offence

8. It is an agreed fact that the physical actions relating to the Infrastructure Offences and the Water Take Offences were undertaken by Mr Littore. Jindalee Wines’ culpability for the offending conduct, it is agreed, arises from its employment of Mr Littore and the responsibility it takes for the actions of its employee.

9. The issues relating to the objective seriousness of the offending conduct is common as between Premises 1 and Premises 2 and as between Mr Littore and Jindalee Wines. These considerations will be dealt together, unless specific reference is made otherwise to a particular Defendant.

10. The determination of an appropriate sentence is to be undertaken bearing in mind that:

A sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its subjective circumstances: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [162].

11. The primary factor to be considered in sentencing is the objective seriousness of the offence. The objective seriousness of the offence fixes both the upper and lower limits of proportionate punishment: the upper, as a sentence should never exceed that which can be identified as proportionate to the gravity of the particular crime; and the lower, as an allowance for the subjective considerations ought not produce a punishment that does not reflect the objective seriousness of the offence: Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 at [139]-[140].

12. The objective gravity of the offence 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].

13. Having regard to the fact that the offences arise under the provision of the WM Act, for the purposes of consideration of sentence in these proceedings, it is appropriate to have regard to the stated objects of that Act, which relevantly include:

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—

…

(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.

14. Section 364A of the WM Act provides further matters to be considered in imposing a penalty:

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,

…

(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, 49B or 324),

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

…

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

Nature of offences and maximum penalty

15. Each of the offences are strict liability offences.

16. The maximum penalties serve as an indication of the seriousness with which Parliament views the particular offences. Each of the offences is a Tier 2 offence under the WM Act, for which the maximum penalty is currently 4,550 penalty units ($500,500) in the case of an individual and 18,200 penalty units ($2,002,000) in the case of a corporation. The current maximum penalties have been in place since 27 June 2018 and apply to Infrastructure Offences for Premises 1 and each of the Take Water Offences. So too the strict liability nature of the offence is an indicator of the public expression by Parliament of the seriousness of the offence and the gravity of the offences as perceived by the community: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 (Axer) at 359; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

17. The Infrastructure Offences relating to Premises 2 took place prior to 27 June 2018, at which time the maximum penalties for a Tier 2 offence were 2,250 penalty units ($247,500) in the case of an individual and 10,000 penalty units ($1,100,000) in the case of a corporation.

Defendants’ state of mind in the commission of the offence/planned organised criminal activity

18. The conduct, the subject of all of the offences, was done with the intention that Jindalee Wines would not have to pay for the unmetered water taken. Taking this fact into account, I find that the conduct was intentional, rather than inadvertent or negligent.

18. I also accept the submission of the Prosecutor that, with respect to the Infrastructure Offences, there was a level of sophistication to the conduct. The infrastructure was at such a depth that earth-moving equipment had to be used to uncover it. In addition, valves were installed to allow for both the metered and unmetered take of water. Those valves were operated in such a way that metered water use was not entirely disproportionate to that which may have been anticipated on the properties (approximately 66% of water used being metered). This allowed the offending to go undetected for a period. As the degree of planning is not a necessary element of the offence, the nature of the conduct is such that I am satisfied beyond reasonable doubt that the criminal conduct was part of a planned or organised activity and should therefore be taken into account as an aggravating feature of the offending.

19. As to the Take Water Offences I also accept the Prosecutor’s submissions that such an offence may be committed without any preparation or organisation and therefore, a degree of planning is not an inherent characteristic of the offence. The Water Take Offences were carried out over a long period of time, and involved systems of concealment, operation and planning. The system was capable of being turned on and off as intended and was operated in a way so as to avoid detection. The offending was repeated. The level of sophistication is such that I am satisfied beyond reasonable doubt that these offences should also be characterised as forming part of a planned or organised criminal activity and should therefore be taken into account as an aggravating factor.

Reasons for committing the offences

21. It is an agreed fact that the bypass infrastructure was installed for the sole purpose of allowing water to be taken in an unmetered fashion from the Western Murray Irrigation Limited (WMI) supply line. Mr Littore indicated that during the “growing season” both metered and unmetered water was used to irrigate wine grapes on Premises 1 and Premises 2. It is an agreed fact that Mr Littore and Jindalee Wines had utilised the bypass infrastructure to take unmetered water with the intention that Jindalee Wines would not have to pay for the unmetered water taken.

22. Further, Jindalee Wines, in answer to a statutory notice, admitted that it was benefitting financially from the cropping activities on Premises 1 and Premises 2. Mr Thomas Littore, director of Jindalee Wines, stated that if unmetered water was taken it would allow Jindalee Wines to save substantial amounts of money in water charges.

23. Having regard to the admissions made in the Agreed Statement of Facts, I am satisfied beyond reasonable doubt that the offences were committed to the financial benefit of Jindalee Wines. I take this into account as an aggravating factor.

Impact of the offence on other persons’ rights

24. A relevant consideration which the Court is to take into account is the impact of the offence on other persons’ rights under the WM Act. The Prosecutor did not contend that the Infrastructure Offences directly impact on other persons’ rights under the Act, however, it did submit that the Take Water Offences did directly impact on other persons’ rights. The impact was identified as one of delay in WMI customers receiving credit, the delay being occasioned due to the time between the provision of the water and the provision of a credit for water that was paid upon Jindalee Wines purchasing water as part of the remedial actions. However, had the offending gone undetected, the offending would have resulted in financial detriment to other WMI customers.

25. Whilst I find beyond reasonable doubt that such impacts did occur, I do not consider that such delays were of such significance as to aggravate the offending conduct, there being no evidence that such a delay caused actual harm or inconvenience to any other person.

Quantum of water taken and market value

26. In each case, the relevant volumes of water were:

1. In relation to Premises 1, the volume of unauthorised water taken was 104ML during the 2019/2020 water year to March 2020; and

2. In relation to Premises 2, the volume of unauthorised water taken was 260.97ML over the course of the 2018/2019 and 2019/2020 water years to March 2020.

27. The price per megalitre on the Temporary Allocation Market for the Western Murray Irrigation zone was:

1. In the 2018/2019 water year, the price fluctuated between a low of $230/ML and a high of $614.50/ML. The market value of the 138ML of water unlawfully taken at Premises 2 during the 2018/2019 water year was somewhere in the range of $31,740 – $84,801; and

2. In the 2019/2020 water year to 18 March 2020 (when the tappings were discovered), the price fluctuated between a low of $505/ML and a high of $970/ML. The market value of the 122.977ML of water unlawfully taken at Premises 2 during the 2019/2020 water year was somewhere in the range of $62,103 – $119,287.

28. On that basis:

1. The market value of the 260.97ML of water taken at Premises 2 across the charge period was between $93,843 and $204,088; and

2. The market value of the 104ML of water unlawfully taken at Premises 1 across the period was between $52,520 and $100,880.

29. I find that neither the volume nor the market value of the water taken were nominal. However, I have taken the volume of water and its value into account in respect of the consideration of the reasons for committing the offence. Accordingly, to ensure that no double penalty is being imposed, I note these matters for context, but they will be otherwise a neutral factor in my determination of the objective seriousness of the offending conduct.

Harm to the environment

30. I accept the parties’ submissions that there was no evidence that the offending caused any harm to the environment or was likely to cause harm to the environment. As a result, the Court does not need to consider the matters in s 364A(1)(c), (d) or (e) of the WM Act.

Control over causes

31. Mr Littore, and through him Jindalee Wines, had complete control over the causes that gave rise to the offences: s 364A(1)(f) of the WM Act.

Other matters – s 364A(2) of the WM Act

Severe drought

32. Extreme Event is defined in the WM Act as:

extreme event means any of the following events—

(a)   an extreme dry period,

(b)   a water quality event of an intensity, magnitude and duration that is sufficient to render water acutely toxic or unusable for established local uses and values,

(c)   any other type of event that has resulted in the suspension of a water management plan under this Act or in the last 50 years of a plan that deals with water allocation and is made under any other Act.

33. Severe water shortage is not a defined term.

34. The totality of the evidence as to the drought event was a statement in the Western Murray Irrigation Newsletter (April 2023) which included an article relating to the commencement of the subject proceedings and stated:

The alleged illegal take of water occurred during a period of severe drought in NSW.

35. The Prosecutor accepted that the water was not taken during a period of severe water shortage within the meaning of s 364A(1)(g) of the WM Act, however, it contended that the severe drought conditions which were prevailing at the time of the offending is a matter which can be taken into consideration under s 364A(2), being a provision that permits a consideration of any other matter considered relevant to the sentence for the offending conduct. I do not consider there is sufficient evidence to make a finding of water shortages or drought. The statement made in the newsletter is insufficient to enable any finding of fact to the necessary standard in this regard and therefore I do not take it into account.

Length of offending

36. The Prosecutor submitted that as to the Water Take Offences, they were committed by a series of acts over time. Mr Littore, and through him Jindalee Wines, had the opportunity to reflect on the conduct and desist, but he instead continued to take unmetered water over time to the detriment of WMI and other water users within the Coomealla Irrigation Area. This was not isolated conduct nor the product of a temporary aberration or misjudgment. This was a matter of particular significance in relation to the offending at Premises 2, which extended over two water years.

37. The nature of the conduct, including the manner of the offending, have already been identified as aggravating factors of the offending. To take these features into account would constitute a double penalty and I therefore give no weight to the consideration.

Consequences of offending

38. The Prosecutor submitted that the evidence disclosed that there were consequences of the offending to WMI. The consequences were said to be incurring of legal and contractor costs in the detection of the offending and dealing with its discovery. The offending conduct was also a factor that contributed to a discrepancy between the main pump and field meter readings, which in turn led to the replacement of the (otherwise aging) fleet of field meters in an attempt to resolve it. These were entirely foreseeable consequences of the offending conduct, actions in taking water out of WMI's system, and they bear upon the seriousness of the offending.

39. I accept that there were real consequences to a third party, namely WMI, as a consequence of the offending conduct. I find beyond reasonable doubt that such consequences occurred and were foreseeable. The uncontested evidence is that costs in the order of $86,260.05 were incurred by WMI. I take this into account.

Former role of David Littore with WMI

40. The Prosecutor does not contend that any of the offences involved the abuse of a position of trust or authority for the purposes of the statutory aggravating factor under s 21A(2)(k) of the CSP Act. It does, however, contend that the former role of Mr Littore as a director on the board of WMI is relevant to the assessment of the seriousness of the offences. It was characterised as him being, by virtue of his former role, in a position to appreciate the likely consequences of his actions on WMI, particularly the potential costs which would have to be incurred by WMI.

41. In light of my finding at [39] above, I do not consider that this further matter adds an additional consideration.

Conclusion on objective seriousness

Premises 1 and 2 Infrastructure Offence – Littore and Jindalee Wines

42. Taking into account the factors identified above, I consider that the objective seriousness of this offending conduct is within the mid-range of seriousness. The intentional and planned undertaking of work designed to avoid detection for financial gain each contributes as aggravating features of the offending conduct.

Premises 1 and 2 Take Water Offence – Littore and Jindalee Wines

43. Taking into account the factors identified above, I consider the objective seriousness of this offending conduct is at the lower end of the mid-range of seriousness. The length of time over which water was taken and the conscious decision on each occasion to switch on the infrastructure such that unmetered water could be taken are aggravating features. The resulting lesser objective seriousness to the infrastructure charge reflects the lack of evidence of environmental harm and the quantum of water taken.

Subjective circumstances of the offenders

Contrition and remorse

44. Contrition is expressed both through words and actions. In this case, there are actions and statements consistent with Mr Littore understanding the nature of his offending conduct and demonstrating his true contrition and remorse. I particularly take into account:

1. Mr Littore apologised to Judith Damiani around a month after the detection of the offending and asked that his apology be conveyed to both the board and the staff of WMI;

2. Mr Littore provided some voluntary assistance to NRAR investigators that was incriminatory of himself and was given whilst under caution; and

3. Mr Littore has also made statements in his sworn affidavit demonstrating contrition and remorse.

45. The statements and actions of Jindalee Wines that display contrition and remorse to which I have particular regard are:

1. Its officeholders engaged with NRAR investigators and provided frank accounts that did not seek to avoid responsibility on the part of the company; and

2. Following the detection of the offences, the Defendants' purchased 1800ML of water on the Temporary Allocation Market and transferred it to WMI's water access licence. This amount exceeded the total amount of water taken. The transfer of water allowed WMI to in turn sell that water and return part of the funds to affected customers. The water purchase cost $900,959.84. In addition, fees and charges in the sum of $100,389.25 were also paid. I consider this factor to be of significant weight in mitigation of the offending conduct.

46. I will take the above factors into account in the determination of an appropriate sentence. I also take them into account as a relevant factor in the assessment of character, likelihood of reoffending and deterrence.

Assistance to EPA – s 21A(3)(m) and s 23 of the CSP Act

47. Mr Littore participated in a record of interview under caution and gave admissions against interest.

48. The officeholders of Jindalee Wines engaged with NRAR investigators and provided frank accounts that did not seek to avoid responsibility on the part of the company.

49. I take the above into account in the determination of the appropriate sentence.

Early plea of guilty – s 22 and s 21A(3)(k) of the CSP Act

50. In these matters, pleas of guilty were entered at the earliest possible date. The Prosecutor and the Defendants both submit that the full discount for the utilitarian value of the early plea should be afforded to the Defendants in each proceeding. I accept this submission and will apply the full 25% discount for the early pleas.

Prior convictions – s 21A(3)(e) of the CSP Act; good character – s 21A(3)(f) of the CSP Act

51. Both Mr Littore and Jindalee Wines have no prior convictions. I take this factor into account in determining the subjective circumstances of the Defendants.

52. A number of affidavits were tendered that spoke to the character of Mr Littore. I take these matters as evidence of Mr Littore’s otherwise good character.

53. Jindalee Wines has no prior convictions. In considering the weight to be given to this consideration I accept the submission of the Prosecutor that it was relevant that the company was only incorporated in May 2016, shortly before the commission of the first of the offences. Notwithstanding this factor, I consider that Jindalee Wines is of good character to the extent that character is determined by not having been convicted of a criminal activity. I take this factor into account in determining the subjective circumstances of the Defendant.

Extra curial punishment

54. It was submitted that Mr Littore had been subject to extra curial punishment in that the community he lives and works in is small and the knowledge of his offending conduct has spread widely through the community. As a consequence, Mr Littore has suffered shame and embarrassment on the basis that his community judged him for the offending conduct.

55. I consider the consequences that Mr Littore has experienced are the reasonable consequence of being charged and convicted of a criminal offence and do not take it into account as an extra curial punishment. However, I will take such factors into account in the determination of the need for specific deterrence.

Whether likely to reoffend – s 21A(3)(g) of the CSP Act

56. Taking into account the character of Mr Littore and Jindalee Wines and the actions and responses that they have undertaken since the commission of the offence to assist the Prosecutor and WMI, I consider that they are unlikely to reoffend.

57. Jindalee Wines deposed as to systems it had put in place to ensure that there was no reasonable opportunity for circumstances to arise again where an employee acts without knowledge or detection by the company. Whilst these systems would operate as a reminder of the prior offending conduct, I am not satisfied that they would operate to deter such conduct or detect it. The systems rely upon the potential offender filling out forms or advising others. This is insufficient to operate as a failsafe to such conduct. Accordingly, I do not take these matters into account.

Deterrence retribution and denunciation

58. Considerations of deterrence require consideration of the individual offender (specific deterrence) and the broader community of water users that may be tempted to carry out similar offending conduct (general deterrence). In this case, whilst I accept that Mr Littore and Jindalee Wines will continue to operate in wine growing industry, the prospect of them reoffending is low. The imposition of a monetary penalty in addition to the shame and remorse expressed by them give me confidence that they are unlikely to reoffend and as such no further specific deterrence is required.

59. In environmental offences the need for general deterrence is recognised. As the consideration was stated by Preston CJ in Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205 at [98]-[99]:

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

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

60. Having regard to the need for general deterrence, I consider that the quantum of the fines imposed in the sentence with respect to each of the offences will be sufficient general deterrence.

Consistency in decision-making

61. The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to ensure that there is a consistent approach to penalty. This approach, however, must also acknowledge that care must be taken in comparing cases where the circumstances of and facts relating to the offences may be quite different: R v Visconti (1982) 2 NSWLR 104; Axer at 365.

62. Both parties referred me to previous decisions of the Court. Having regard to those decisions, I am unable to identify any sentencing pattern that would warrant consideration.

Legal costs

63. The Defendants have agreed to pay the Prosecutor's legal costs as agreed in the sum of $95,000 with half of this sum to be paid once by each Defendant. I consider that it is appropriate that I take this factor into account in determining the appropriate sentence for each of the Defendants for each of the charges: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [88].

Jurisdictional limit of Local Court

64. It was submitted that some weight in the exercise of the sentencing discretion would be given to the fact that the proceedings were brought in the Land and Environment Court and not in the Local Court. Section 364(6) of the WM Act prescribes the jurisdiction maximum in the Local Court to be the lesser of 200 penalty units ($22,000) or the penalty specified in respect of the offence. The result is that the offender now faces a maximum penalty significantly higher than that which could have been imposed in the Local Court. In making this submission it was not put that there was no justification in the prosecution bringing the proceedings in the Land and Environment Court, but rather that these proceedings, having regard to the following factors, could have reasonably been brought in the Local Court:

1. This was not a case where the Prosecutor was seeking orders which would not have been available in the Local Court;

2. This was not the first case in which a prosecution had been brought under the relevant provisions of the WM Act;

3. Each of the offenders had no criminal antecedents; and

4. The volume of water taken and the objective seriousness of the offending is at the lower end of offending conduct.

65. For the reasons outlined above, I do not accept that the objective seriousness of the offending conduct in any of the charges was at the lower end of the offending conduct. The jurisdictional limit of the Local Court would limit the making of a sentence otherwise reflective of the objective and subjective considerations that arise with respect to each offence. Accordingly, I give no weight to this consideration in the determination of the sentence.

Publication order

66. In addition to any penalty imposed, the Court may make further orders as identified in s 353G(1)(a) of the WM Act which provides that:

353G   Additional orders

(1)   The court may do any one or more of the following—

(a)   it may order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the offender,

…

67. The Prosecutor seeks such a publication order and the Defendants do not object to the making of such an order.

68. Having regard to the circumstances of this case, I consider the imposition of such an order is appropriate in the terms agreed between the parties.

Moiety

69. The Prosecutor seeks an order that one half of any monetary penalty imposed by the Court be paid to the Prosecutor pursuant to s 122 of the Fines Act 1996 (NSW) (Fines Act). An order for payment of investigation costs would not compensate the Prosecutor for the total time spent by its officers investigating the commission of the offences.

70. The Defendants submitted that the order for a moiety of any fine was appropriate in the circumstances of this case. I agree that ordering a moiety is appropriate and I will make such an order.

Fines Act – capacity to pay

71. Section 6 of the Fines Act required me to take into account the offenders’ means to pay a fine.

72. Neither Defendant submits that it does not have the capacity to pay a financial penalty.

Appropriate sentence

73. The appropriate sentence is to be derived by an “instinctive synthesis” of all of the relevant factors in order to determine an appropriate proportionate sentence: Markarian v The Queen (2005) 228 CLR 357.

74. Taking into account the objective seriousness of the charges and the factors identified above I have determined that the appropriate sentence in this case includes the imposition of a monetary penalty (in addition to the publication order and the additional orders relating to legal costs) in the following amounts:

Premises 1 Infrastructure Offence – Littore	$180,000 less 25% (early plea) = $135,000
Premises 1 Take Water Offence – Littore	$100,000 less 25% (early plea) = $75,000
Premises 2 Infrastructure Offence – Littore	$80,000 less 25% (early plea) = $60,000
Premises 2 Take Water Offence – Littore	$100,000 less 25% (early plea) = $75,000
Premises 1 Infrastructure Offence – Jindalee Wines	$500,000 less 25% (early plea) = $375,000
Premises 1 Take Water Offence – Jindalee Wines	$60,000 less 25% (early plea) = $45,000
Premises 2 Infrastructure Offence – Jindalee Wines	$250,000 less 25% (early plea) = $187,500
Premises 2 Take Water Offence – Jindalee Wines	$60,000 less 25% (early plea) = $45,000

75. I note that the lesser amount of the penalty reflected in each of the Premises 2 Infrastructure Offences reflects the lower statutory maximum penalty in force at the time of the commission of the offence.

Totality principle

76. The principle of totality is a relevant sentencing principle in the present case where both offences with which each of the Defendants have been charged, and for which they have pleaded guilty, arise from the same identical facts and circumstances.

77. The principle has been concisely described by the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610 at 623 (McHugh, Hayne and Callinan JJ) as:

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.

78. It is appropriate to leave questions of totality to the end of the sentencing process and apply a final check of the aggregate sum of the fines proposed to be imposed against whether it is a just and appropriate penalty for the entire criminality: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 at [111].

79. As outlined above, the elements of each offence as relate to each offender are co-incident with respect to the conduct and circumstances giving rise to the commission of each offence and the consequence of each offence, such that the application of the sentencing principle of totality is appropriate to be applied in the circumstances of this case. I consider that the offending conduct for each separate premises are not co-incident and should be considered as appropriate for the application of the principle of totality.

80. Having regard to the circumstances of this case, I consider the Infrastructure Offences to be of greater objective seriousness and observe that the Take Water Offences were facilitated by the infrastructure works such that a lesser penalty is appropriate for the Take Water Offences. Due to the amount of overlap between the Infrastructure Offences and Take Water Offences, I consider that a reduction in the quantum of the Take Water Offences in the sum of 50% adequately reflects the totality of the entire criminality.

Conclusion and orders

81. Taking into account all of the matters outlined herein, the Court orders:

Proceedings 2023/00078917-20

1. In proceedings 2023/00078917:

1. David Alan Littore is convicted of the offence charged;

2. David Alan Littore is to pay a fine of $67,500; and

3. Pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW), David Alan Littore is to pay the Prosecutor’s professional costs as agreed fixed in the sum of $47,500.

2. In proceedings 2023/00078918:

1. David Alan Littore is convicted of the offence charged; and

2. David Alan Littore to pay a fine of $30,000.

3. In proceedings 2023/00078919:

1. David Alan Littore is convicted of the offence charged; and

2. David Alan Littore is to pay a fine of $37,500.

4. In proceedings 2023/00078920:

1. David Alan Littore is convicted of the offence charged; and

2. David Alan Littore is to pay a fine of $37,500.

Proceedings 2023/00078671-4

5. In proceedings 2023/00078671:

1. Jindalee Road Wines Pty Ltd ACN 612 316 239 is convicted of the offence charged;

2. Jindalee Road Wines Pty Ltd ACN 612 316 239 is to pay a fine of $187,500; and

3. Pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW), Jindalee Road Wines Pty Ltd ACN 612 316 239 is to pay the Prosecutor’s professional costs as agreed fixed in the sum of $47,500.

6. In proceedings 2023/00078672:

1. Jindalee Road Wines Pty Ltd ACN 612 316 239 is convicted of the offence charged; and

2. Jindalee Road Wines Pty Ltd ACN 612 316 239 is to pay a fine of $93,750.

7. In proceedings 2023/00078673:

1. Jindalee Road Wines Pty Ltd ACN 612 316 239 is convicted of the offence charged; and

2. Jindalee Road Wines Pty Ltd ACN 612 316 239 is to pay a fine of $22,500.

8. In proceedings 2023/00078674:

1. Jindalee Road Wines Pty Ltd ACN 612 316 239 is convicted of the offence charged; and

2. Jindalee Road Wines Pty Ltd ACN 612 316 239 is to pay a fine of $22,500.

Proceedings 2023/00078917-20 and 2023/00078671-4

9. Pursuant to s 353G(1)(a) of the Water Management Act 2000 (NSW), David Alan Littore and Jindalee Road Wines Pty Ltd ACN 612 316 239 must, within 28 days of this order and at their own expense, cause a notice to be published in the terms of Annexure A to this order in the digital and print versions of the following publications at the minimum size specified below for the print edition (and of corresponding size in the digital edition) in the next available edition and on the earliest available page of:

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

2. Sunraysia Daily (18.6cm x 12.9cm).

10. Within 7 days of the date of publication of the notice referred to in order 9, David Alan Littore and Jindalee Road Wines Pty Ltd ACN 612 316 239 must provide to the Prosecutor a complete copy and screenshot of the entire page of the notice in the publications in which it appears.

11. It is sufficient for compliance with orders 9 and 10 if one or other of David Alan Littore and Jindalee Road Wines Pty Ltd ACN 612 316 239 causes the relevant notice to be published and advise the Prosecutor of their publication.

12. Pursuant to s 122 of the Fines Act 1996 (NSW), a half share of each of the fines imposed by the Court under Orders 1-4 and 5-8 above is to be paid to the Prosecutor.

Annexure A

Addendum

82. Orders in [81(1)(b), (2)(b), (5)(b) and (6)(b)] above varied pursuant to the Court’s judgment in Natural Resources Access Regulator v Jindalee Road Wines Pty Ltd; Littore (No 2) [2024] NSWLEC 105.

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Amendments

16 October 2024 - Addendum.

Decision last updated: 16 October 2024