Natural Resources Access Regulator v Kimber; Natural Resources Access Regulator v Kimber

[2023] NSWLEC 101

Land and Environment Court

New South Wales

Medium Neutral Citation:

Natural Resources Access Regulator v Kimber; Natural Resources Access Regulator v Kimber [2023] NSWLEC 101

Hearing dates:

28, 29 August 2023

Date of orders:

29 September 2023

Decision date:

29 September 2023

Jurisdiction:

Class 5

Before:

Pain J

Decision:

The Court orders that:

(1) The charge in proceeding 2022/346166 against the defendant Mr Kenneth Kimber be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction.

(2) The charge in proceeding 2022/346177 against the defendant Mr Kenneth Kimber be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction.

(3) The charge in proceedings 2022/346025 against the defendant Mr Luke Kimber be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction.

(4) The charge in proceedings 2022/346036 against the defendant Mr Luke Kimber be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction.

(5)   The defendants Mr Kenneth Kimber and Mr Luke Kimber to pay the Natural Resources Access Regulator’s costs in proceedings 2022/346166, 2022/346177, 2022/346025 and 2022/346036 as agreed or assessed excluding any costs in relation to the evidence of Mr McDermott and Dr Brookes.

(6)    The exhibits to be returned.

Catchwords:

SENTENCING – plea of guilty to contravention of term of access licence – very low objective seriousness – no moral culpability - no actual or likely environmental harm – no impact on another person’s rights – application of s 10(1) Crimes (Sentencing Procedure) Act 1999 (NSW) considered

SENTENCING – plea of guilty to taking water contrary to term of access licence – very low objective seriousness – no moral culpability - no actual or likely environmental harm – no impact on another person’s rights – application of s 10(1) Crimes (Sentencing Procedure) Act 1999 (NSW) considered

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10, 21A

Criminal Procedure Act 1986 (NSW), s 257B

Water Management Act 2000 (NSW), ss 3, 5, 60B, 66, 363B, 364, 364A

Water Sharing Plan for the Murrumbidgee Unregulated and Alluvial Water Sources 2012 (NSW), cll 56, 81

Cases Cited:

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

Barnes, Chief Regulatory Officer, Natural Resource Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5

Bentley v BGP Properties Pty Limited [2006] NSWLEC 34

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

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

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

Environment Protection Authority v Zoya Investments Pty Ltd [2022] NSWLEC 149

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

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

Plath of the Department of Environment and Climate Change v Fish; Plath of the Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144

R v Mauger [2012] NSWCCA 51

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

R v Paris [2001] NSWCCA 83

R v Storey (1998) 1 VR 359

Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213

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

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

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

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

Texts Cited:

Judicial Commission of NSW Sentencing Bench Book (Update 55, August 2023)

Macquarie Dictionary, online ed, September 2023

Category:

Sentence

Parties:

In proceedings 2022/346025 and 2022/346036:
Natural Resources Access Regulator (Prosecutor)
Luke Kimber (Defendant)

In proceedings 2022/346166 and 2022/346177:
Natural Resources Access Regulator (Prosecutor)
Kenneth Kimber (Defendant)

Representation:

Counsel:
P. English (Prosecutor)
T. Howard SC with L. Sims (Defendants)

Solicitors:
Natural Resources Access Regulator (Prosecutor)
Bick & Steele (Defendants)

File Number(s):

2022/346025; 2022/346036; 2022/346166 and 2022/346177

JUDGMENT

1. The defendant Mr Kenneth Kimber has pleaded guilty to two offences of contravening the term or condition of an access licence as the licence holder contrary to s 60B(2) of the Water Management Act 2000 (NSW) (WM Act). The defendant Mr Luke Kimber has pleaded guilty to two offences of contravening the term or condition of an access licence as the non-licence holder who took the water contrary to s 60B(1) of the WM Act.

2. Water access licences 33305 and 33291 (the access licences) are held by Mr Kenneth Kimber. The access licences prohibit the taking of water from the Murrumbidgee II Water Source when the flow of water is in the ‘Very Low Flow Class’ defined as 27 megalitres (ML) per day or less at the Murrumbidgee River Billilingra Gauge (flow condition). Between 20 November and 12 December 2019 Mr Luke Kimber extracted 95.18ML of water from the Murrumbidgee River in contravention of the flow condition pursuant to each of the access licences. A series of extractions by various pumps occurred over the charge period and a separate offence has been charged for each access licence reflecting the pumps that were used, hence there are two charges for each defendant. The offences occurred at a rural property used for commercial farming of cattle fodder located in Chakola, NSW (Dromore Station).

3. The flow condition commenced on 19 February 2018. A former licence condition, condition 7 (par 16 of the Statement of Agreed Facts (SOAF) below in [11]), required the defendants to cease pumping when the river height fell below 0.58m at the Billilingra Gauge and the river flow did not exceed 15ML per day.

4. It is necessary to sentence the defendants for the offences. All the offences will be considered together. A plea of guilty can be considered as an admission of the essential elements of an offence. The offences are strict liability offences so that mens rea is not an essential element of the offences.

Water Management Act 2000(NSW)

5. Relevant sections of the WM Act provide:

Chapter 1 Preliminary

…

3 Objects

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

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

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

…

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

…

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

…

Chapter 2 Water management planning

Part 1 General

Division 1 Water management principles

5 Water management principles

…

(2) Generally—

(a) water sources, floodplains and dependent ecosystems (including groundwater and wetlands) should be protected and restored and, where possible, land should not be degraded, and

(b) habitats, animals and plants that benefit from water or are potentially affected by managed activities should be protected and (in the case of habitats) restored, and

(c) the water quality of all water sources should be protected and, wherever possible, enhanced, and

(d) the cumulative impacts of water management licences and approvals and other activities on water sources and their dependent ecosystems, should be considered and minimised, and

(e) geographical and other features of Aboriginal significance should be protected, and

(f) geographical and other features of major cultural, heritage or spiritual significance should be protected, and

(g) the social and economic benefits to the community should be maximised, and

(h) the principles of adaptive management should be applied, which should be responsive to monitoring and improvements in understanding of ecological water requirements.

(3) In relation to water sharing—

(a) sharing of water from a water source must protect the water source and its dependent ecosystems, and

(b) sharing of water from a water source must protect basic landholder rights, and

(c) sharing or extraction of water under any other right must not prejudice the principles set out in paragraphs (a) and (b).

…

Chapter 3 Water management implementation

…

Part 2 Access licences

…

Division 1A Offences

…

60B Contravention of terms and conditions of access licence

(1) A person (other than the holder) who takes water pursuant to an access licence is guilty of an offence if the person contravenes any term or condition of the licence.

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

…

Division 3 Conditions, duration and amendment of access licences

66 Conditions of access licence generally

(1) An access licence is subject to such conditions as the Minister may from time to time impose—

(a) which must include such conditions as are required to be imposed on the licence by this Act or by any relevant management plan, and

(b) which may include such other conditions, such as—

(i) conditions to give effect to any agreement between an applicant and objector under section 62 (5), and

(ii) conditions relating to the protection of the environment,

as the Minister thinks fit (discretionary conditions).

(1AA) An access licence is subject to any mandatory conditions imposed by this Act or the regulations.

(1A)  Mandatory conditions (other than conditions imposed by the regulations) do not have effect in relation to an access licence unless they are included in the terms of the licence.

…

(5)  In this section, mandatory condition means a condition referred to in subsection (1) (a) or (1AA) or imposed under section 8E.

…

Chapter 7 Enforcement

…

Part 5 Legal proceedings and appeals

Division 1 Legal proceedings

…

363B Penalties

For the purposes of this Act—

…

(b) a Tier 2 penalty corresponds to a maximum penalty of—

(i) in the case of a corporation, 18,200 penalty units and, in the case of a continuing offence, a further penalty of 1,200 penalty units for each day the offence continues, or

(ii) in any other case, 4,550 penalty units and, in the case of a continuing offence, a further penalty of 600 penalty units for each day the offence continues, and

…

364 Proceedings for offences

(1) Proceedings for an offence against this Act or the regulations are to be disposed of summarily—

(a) by the Local Court, or

(b) by the Land and Environment Court in its summary jurisdiction.

(2) Proceedings for an offence against this Act or the regulations may be commenced at any time within, but not later than, 3 years after the date on which the offence is alleged to have been committed.

(3) Proceedings for an offence against this Act or the regulations may also be commenced at any time within, but not later than, 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer.

(4) If subsection (3) is relied on for the purpose of commencing proceedings for an offence, the process by which the proceedings are commenced must contain particulars of the date on which evidence of the offence first came to the attention of any relevant authorised officer and need not contain particulars of the date on which the offence was committed.

(5) The date on which evidence first came to the attention of any relevant authorised officer is the date specified in the process by which the proceedings are commenced, unless the contrary is established.

(6) The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence against this Act or the regulations is—

(a) the lesser of the following—

(i) 200 penalty units,

(ii) the maximum monetary penalty specified in respect of the offence, and

(b) in the case of a continuing offence, 10 per cent of the further monetary penalty specified in respect of the offence for each day the offence continues.

(7) The maximum penalty that may be imposed by the Land and Environment Court in proceedings for an offence against this Act or the regulations is the maximum penalty specified in respect of the offence.

(8) In this section, evidence of an offence means evidence of any act or omission constituting the offence.

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, 49B 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.

6. The maximum penalty in this Court is $500,500 under ss 363B(b), 364(7) of the WM Act. The maximum penalty in the Local Court is $22,000 under s 364(6) of WM Act.

Crimes (Sentencing Procedure) Act 1999 (NSW)

7. The Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) provides relevantly as follows:

Part 1 Preliminary

…

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.

…

Part 3 Sentencing procedures generally

Division 1 general

…

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.

…

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

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

(b) the offence was not part of a planned or organised criminal activity,

(c) the offender was provoked by the victim,

(d) the offender was acting under duress,

(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),

(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,

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

(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),

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

(n) an offer to plead guilty to a different offence where the offer is not accepted, the offender did not plead guilty to the offence and the offender is subsequently found guilty of that offence or a reasonably equivalent offence (this circumstance, among others, is provided for by section 25E (1)).

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

…

8. Section 21A of the CSP Act identifies aggravating (subs(2)) and mitigating factors (subs (3)) which a court must take into account on sentence. No aggravating circumstances are relied on by the NRAR.

9. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of a defendant: Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen v The Queen(No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-73 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-91 (Deane J). The sentence should not exceed what is justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen (No 2) at 472, 485-86, 490-91, 496 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

10. When sentencing, any matter adverse to a defendant must be proved by a prosecutor beyond reasonable doubt and any contested matter relied on by a defendant must be established on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich) at 281 citing R v Storey (1998) 1 VR 359 (Storey) at 369.

Statement of agreed facts

11. The NRAR and defendants agreed the following SOAF.

The offences

1 Luke Kimber has pleaded guilty to the following offences:

a. One charge of contravening s. 60B(1) of the WM Act, in that, between 9.00am on 20 November 2019 to about 11.00am on 13 December 2019, he took water pursuant to WAL 33305 in contravention of the flow condition described at [35] below (Flow Condition) (LEC No: 2022/346025); and

b. One charge of contravening s. 60B(1) of the WM Act, in that, between 1.30pm on 20 November 2019 to about 11.00am on 13 December 2019, he took water pursuant to WAL 33291 in contravention of the Flow Condition (LEC No: 2022/346036).

2 Kenneth Kimber has pleaded guilty to the following offences:

a. One charge of contravening s. 60B(2) of the WM Act, in that, between 9.00am on 20 November 2019 to about 11.00am on 13 December 2019, he was a holder of WAL 33305 and water was taken by L Kimber in contravention of the Flow Condition (LEC No: 2022/346166); and

b. One charge of contravening s. 60B(2) of the WM Act, in that, between 1.30pm on 20 November 2019 to about 11.00am on 13 December 2019, he was a holder of WAL 33291 and water was taken by L Kimber in contravention of the Flow Condition (LEC No: 2022/346177).

Ownership and Operation of Dromore Station by the Kimber family

3 The first defendant, Ken Kimber, and his wife, Judith Kimber, are the owners of a rural property known as “Dromore Station”, located at 96 Dromore Road Chakola NSW on land legally described as comprising Lot 1 in DP 544984; Lot 2 in DP 544984; Lot 1 in DP 632939; Lot 37 of DP 657896 and Lots 7, 8, 12, 13, 14, 15, 32, 33, 36 and 56 in DP 750569, Lots 1, 2, 3, 4 and 5 in DP131939 (Dromore Station).

4 Ken and Judith Kimber have owned part of Dromore Station since about September 2010. They purchased the balance of Dromore Station in about November 2012.

5 Dromore Station is a farm located off the Monaro Highway, south of Bredbo between Canberra and Cooma. It comprises approximately 850 hectares of riparian land having a frontage to a section of the upper Murrumbidgee River immediately upstream of the junction of the Murrumbidgee River and the Numeralla River.

6 At all relevant times, Dromore Station has been used for the growing of crops, irrigated by water drawn from the adjoining section of the Murrumbidgee River.

7 Ken Kimber is 74 years old. He and Judith Kimber have owned and operated dairy farms for over 40 years and the farms are run as family businesses. The farms include a main dairy farm in Bega (which has 1,200 milking cows), where Ken Kimber and Judith Kimber live, a calf-rearing farm in Bega and a farm in Cann River in Victoria which is a heifer rearing farm.

8 At all relevant times, Dromore Station was primarily used as a farm to grow feed (being lucerne hay, lucerne silage and corn silage) to be used as fodder for the cattle on the other farms owned and operated by Ken Kimber and Judith Kimber.

9 Ken Kimber is the person ultimately responsible for managing the licensing and financial and administrative aspects of the farming business carried out at Dromore Station.

10 The second defendant, Luke Kimber, is the farm manager of Dromore Station. Luke Kimber is the son of Ken and Judith Kimber. Luke is, and since 2010 has been, employed by Ken Kimber to manage Dromore Station as a farm. Luke Kimber is (and was) the person responsible for the day-to-day management of Dromore Station, which included deciding when the pumps on the property would be operated to extract water from the Murrumbidgee River.

11 During the period 20 November 2019 to 13 December 2019 (Charge Period) there were six pump sites and six pivot sites at Dromore Station. The identification of the pumps and pivots are set out in the table below

NRAR Description
Combined Approval	Water Supply Work	Pivot etc	Area / use
40CA414168	Work 1	3	Irrigation to pivot sprinklers, BLR water to shed and house
Work2	1&2	Irrigation at pivots
Work3	Sprinklers	Irrigation to fixed sprinklers
40CA414165	Work4	4&5	Irrigation to pivots
40CA414165	Work 5	6 and traveller	Irrigation to pivot and traveller
N/A BLR	S&D Pump	Troughs, tanks etc	BLR water

12 Below is an aerial image of Dromore Station and surrounds depicting the location of the water supply works and their associated meters at Dromore Station as labelled by the NRAR.

13 The stretch of the upper Murrumbidgee River which adjoins Dromore Station is part of the “Murrumbidgee II Water Source”, whose boundaries are identified in the map at [18] below. Under the Water Management Act 2000 (WM Act), the Murrumbidgee II Water Source is a water source to which Part 2 of the WM Act applies.

14 At all relevant times, Ken Kimber has been the holder of licences having effect under the WM Act which conditionally permitted, and permit, the taking of water from the Murrumbidgee River to be used for the purposes of irrigating crops on Dromore Station.

Former Water Surface Licences

15 When Ken and Judith Kimber purchased Dromore Station in 2010 and in 2012, they also purchased the surface water licences previously held by the outgoing owner of the land. Specifically, when the Kimbers purchased Dromore Station, Ken Kimber became the holder of the following water surface licences:

a. unregulated water surface licence No. 40SL042535 with an allocation for irrigation of 2,273 megalitres per water year a copy of which is at Tab A; and

b. unregulated water surface licence No. 40SL042573 with an allocation for irrigation of 2,273 megalitres per water year a copy of which is at Tab B.

16 Each of those water surface licences held by Ken Kimber included a condition (Condition 7) in the following terms, being a condition of a type known as a “cease to pump” condition:

The licensed work shall not be used for the purpose of irrigation unless the flow of the Murrumbidgee River at the Billilingra Gauge (upstream of Bredbo) exceeds 15 megalitres per day with such flow corresponding to a reading on the said gauge of 0.58 metres (or such other reading as may be determined from time to time).

The coming into force of the 2012 Water Sharing Plan

17 From 4 October 2012, the Water Sharing Plan for the Murrumbidgee Unregulated and Alluvial Water Sources 2012 (2012 WSP) applied to the Murrumbidgee II Water Source. A copy of the 2012 WSP is at Tab C.

18 A map extracted from the 2012 WSP showing the Murrumbidgee II Water Source is below.

Factors influencing water flow in the Murrumbidgee II Water Source

19 Water flow in the section of the upper Murrumbidgee River comprising the Murrumbidgee II Water Source, including the section of the river adjacent to Dromore Station is dependent on a combination of natural rainfall and run-off from tributaries and agreed releases of water from the Tantangara Dam, by the Snowy Hydro Limited, pursuant to its Corporate Licence under the Snowy Hydro Corporatisation Act 1997.

20 River discharge is managed at Tantangara Dam by Snowy Hydro Limited with a base flow target of 32 ML/Day as measured at Mittagang Crossing, Cooma (410033).

21 Snowy Hydro Limited’s Corporate Licence provides for the release of an agreed annual volume of water from Tantangara Dam into the Murrumbidgee River. The volume of water available for irrigation in the Upper Murrumbidgee will depend on the volume of water being released from Tantangara Dam by Snowy Hydro Limited.

The Conversion of the former surface water licences into combined approvals and water access licences under the WM Act

22 On and from 4 October 2012, upon commencement of the 2012 WSP, the entitlements held by Ken Kimber under Surface Water Licences Nos. 40SL042535 and 40SL042573, were converted into combined approvals and water access licences (WALs) under the WM Act.

23 In so far as those former entitlements conferred rights to the use of water supply works, (pumps etc) for specified purposes, the entitlements were converted by operation of the law, pursuant to transitional provisions of the WM Act, into combined water supply works and water use approvals under the WM Act.

24 A Combined Water Supply Works and Water Use Approval under the WM Act authorises the holder to construct and use a specified water supply work at a specified location, and to use water for a particular purpose at a particular location. A water supply work is the means by which water may be taken pursuant to a water access licence.

25 In so far as the former entitlements under the surface water licences permitted the extraction of water from the Murrumbidgee II water source, they were converted by operation of the law, pursuant to transitional provisions of the WM Act, into water access licences (WALs) under the WM Act.

26 Specifically following the commencement of the 2012 WSP on 4 October 2012, the entitlements under the two former Surface Water Licences Nos. 40SL042535 and 40SL042573 were converted to combined works approvals and water access licences under the WM Act as follows:

a. Surface Water Licence No. 40SL042573 was converted to Combined Works Approval No. 40CA414168 and WALs Nos 33305 and 33285; and

b. Surface Water Licence 40SL042535 was converted to Combined Works Approval 40CA414165 and WALs Nos. 33291 and 33297.

27 Each of the WALs conditionally permitted the extraction of water from the water supply work in use at a specified location as identified in the nominated works approval to which the WAL related. The nominated water supply works and WALs at Dromore Station were relevantly as follows:

Work	Description	Applicable Approval and WAL
Work 1	A pump on Lot 1 of DP 632939 which fed water to an irrigation pivot primarily located on Lot 15 of DP 750569.	40CA414168 (WAL 33305)
Work 2	A pump on Lot 8 of DP 750569 which fed water to an irrigation pivot located on the same Lot and Lot 1 of DP 632939.	40CA414168 (WAL 33305)
Work 5	Two conjoined pumps located on Lot 2 of DP 544984, which fed water primarily to an irrigation pivot located on the same lot	40CA414165 (WAL 33291)

The continued operation of Condition 7 from 4 October 2012 to 19 February 2018

28 Pursuant to the transitional provisions of the WM Act, the WALs which came into effect on the coming into force of the 2012 WSP remained subject to the conditions of the surface water licences which they replaced in so far as the conditions were applicable to the extraction of water.

29 In particular, on and from 4 October 2012, Condition 7 of the water surface licences (i.e., the cease to pump condition extracted at [16] above) continued to apply to the WALs under the WM Act that replaced the former water surface licences.

30 On around 25 March 2014, Ken and Judith Kimber received written notice from the NSW Department of Primary Industries (Office of Water) that “the conditions for the Water Sharing Plan for your area have not been developed as yet, in the interim you must abide by the conditions of your previous Water Act licence”. A copy of this letter is at Tab D. This remained the position until 19 February 2018. That is, Condition 7 continued to apply to the taking of water under the WALs until 19 February 2018 when Ken Kimber received letters from the Department of Industry which are referred to below.

The Flow Condition notified on 19 February 2018

31 On 17 February 2017, Ken Kimber received a letter from the Department of Primary Industries (Water) inviting submissions in response to a Status and Issues Paper that had been released for the Murrumbidgee surface water resource. A copy of this letter is at Tab E. The Status and Issues Paper to which the letter referred is at Tab F.

32 On 31 March 2017, Ken Kimber, on behalf of a group of irrigators in the Upper Murrumbidgee system, sent a submission to the Department of Primary Industries in response to the SW9 Status and Issues Paper. A copy of this submission is at Tab G.

33 On 19 May 2017, Ken Kimber received a telephone call and had a discussion with David Bishop (Water Planner at the NSW Department of Industry) who said that he was not aware of any proposal to change the cease to pump rules.

34 Ken Kimber did not receive any other communications from DPI Water in response to the submission made on 31 March 2017, nor any communications in relation to licensing until 19 February 2018.

35 Under cover of letters dated 19 February 2018, which letters Ken and Judith Kimber received by post, the Department of Industry sent Ken and Judith copies of amended versions of their water access licences under the WM Act.

Unregulated River Licences

a. WAL 33305 (40AL414167), being an “Unregulated River” category licence with a share component of 2,273 units (nominating Approval 40CA414168);

b. WAL 33291 (40AL414164), being an “Unregulated River” category licence with a share component of 2,273 units (nominating Approval 40CA414165);

Domestic and Stock Licences

c. WAL 33285 (40AL414166), being a “Domestic and Stock” category licence” with a share component of 5.5 ML (nominating Approval 40CA414168);

d. WAL 33297 (40AL414163), being a “Domestic and Stock” category licence with a share component of 5.5 ML (nominating Approval 40CA40414165).

36 The Department of Industry letters included the following notification:

There are two types of conditions that apply to licences and approvals:

a. Plan conditions that are required to be imposed by the Murrumbidgee Unregulated and Alluvial Water Sources. These apply immediately to your licence and/or approval and are identified with the letter ‘M’

b. Other conditions that are proposed to apply to your licence and/or approval which are identified with the letter ‘D’ or ‘N’.

Copies of your approvals/licences are attached. If you have concerns about the conditions marked ‘D’ or ‘N’ please contact WaterNSW to make a submission within 28 days from the date of this letter

37 WALs Nos. 33305 and 33291 attached to the Department of Industry letter of 19 February 2018 contained an amended form of cease to pump condition as compared with Condition 7 referred to and extracted at [16] above. The cease to pump condition contained in each of those WALs attached to the letter of 19 February 2018 was in the following amended terms (Flow Condition):

“Water must not be taken from the Murrumbidgee II Water Source when flows are in the Very Low Flow Class, which means that the flow is 27ML/day or less at the Murrumbidgee River Billilingra gauge [No. 410050].

This restriction does not apply if water is to be taken from an off-river pool, an off-river dam pool, a runoff harvesting dam or an in-river dam pool”.

38 The Flow Condition was identified with the letter “M” as a mandatory condition, and, as such, it fell outside the scope of the discretionary conditions as to which submissions had been invited by the Department of Industry in its letters.

39 The letters also enclosed copies of Approval 40CA414168 and Approval 40CA41465.

40 At all relevant times from on or about 19 February 2018, upon the notification provided by way of the Department of Industry letters of that date, WAL 33305 and WAL 33291, were subject to the Flow Condition in the form set out in paragraph 43 above. That is, Condition 7, which related to the height of the river corresponding to a reading on the Billilingra Gauge of 0.58 metres ceased to apply. The Flow Condition did not contain a reference to the height of the river.

41 Work 1 extracted water from an anabranch channel of the Murrumbidgee River (being a section of the river that diverts from the main channel and re-joins the main channel downstream). Works 2 and 5 extracted water from the main channel of the Murrumbidgee River. None of Works 1, 2 and 5 extracted water from an ‘off-river pool’, an ‘off-river dam pool’, a ‘runoff harvesting dam’ or an ‘in-river dam pool’.

42 At the time Ken Kimber received the Department of Industry letters of 19 February 2018, he did not read them. He gave them to his administrative assistant for filing. He did not realise that the cease to pump condition on his water access licences had been changed. Ken Kimber did not make Luke Kimber aware of these letters and did not provide him with copies of them.

43 It was not until after 12 December 2019 when the NRAR officers attended Dromore Station (as referred to below), that Ken Kimber first read the letters dated 19 February 2018.

44 On 2 November 2018, Ivars Reinfelds, Senior Research Scientist in the Department of Primary Industries sent an email to [email protected] titled “Murrumbidgee flows and rules”, which referred to the Flow Condition of 27ML/D. A copy of this email is at Tab J.

Metering data

45 At all relevant times, Works 1, 2 and 5 were metered with a State-owned electromagnetic water flow meter together with a data logger and data telemetry equipment. Each telemetered meter was installed in connection with a water outlet pipeline connected to the relevant water supply work. When water was pumped from the river, the flow meter collected flow information and stored it locally. The data was then sent every 15 minutes to a remote telemetry unit (RTU) located adjacent to the meter. From the RTU, the data was transmitted to WaterNSW’s ClearSCADA system.

46 During the charge periods, the meters connected to Works 1, 2 and 5 did not log any events or alarms indicating that the normal function of the meter had been disturbed (for instance, because of a communication failure or a low battery), and no changes or amendments were made to the data.

Flow rate data

47 At all relevant times, WaterNSW operated a water monitoring station at Billilingra Gauge (station number 410050) which was used to generate real-time flow rate data for the Murrumbidgee River at that location.

48 Billilingra Gauge is downstream of Dromore Station.

49 In general terms, the flow-rate data is processed as follows:

a. a level sensor at the gauge records the height of the river at the gauge location (“river height data”);

b. the river height data is transmitted at regular intervals to WaterNSW’s electronic databases via telemetry;

c. the river height data is used by WaterNSW’s systems to generate “flow data”, based on a Rating Table which plots the relationship between river height and river flow (discharge); and

d. the flow data is automatically published on WaterNSW’s real time data website and WaterLive app and updated approximately every hour (“provisional flow rate data”).

50 As part of WaterNSW’s quality assurance procedures, water monitoring officers attend the Billilingra Gauge approximately every two months to perform routine maintenance tasks and to take certain steps to validate the previously recorded flow rate data (after which “quality assured data” is produced).

51 During these site visits, the water monitoring officers check that the level sensor is accurately recording the height of the river (allowing for a margin of error of +/- 10mm). Where required, the previously recorded river height data is adjusted to take account of any inaccuracies arising beyond the accepted margin of error. No such adjustment was required for the duration of the offence periods.

52 During these site visits, the water monitoring officers also perform “gaugings”, which are manual point-in-time measurements of the flow rate of the river. Collecting gaugings over time enables WaterNSW to continue to validate and refine the Rating Table (by ensuring that gaugings are falling within plus or minus 10% of the flow rate predicted by the Rating Table). If an update to the Rating Table is made after a site visit, recent river flow rate data may be re-interpreted with the updated Rating Table to reflect the refined plot of the relationship between river height and river flow. This occurred for the flow rate data during the offence periods. The quality assured version of the flow rate data reflects an update to the Rating Table.

53 After these steps are completed, the provisional data (incorporating any adjustments) is archived by WaterNSW as “quality assured data”. Quality assured data is available on WaterNSW’s website (see [57] below).

Data published online

54 At all relevant times, WaterNSW used provisional flow rate data to publish “live” water levels (river height) and flow rates for the Billilingra Gauge, at hourly intervals, via its real-time-data website and the WaterLive app. The “WaterLive” app is a publicly available application for Android and Apple IOS devices which provides access to WaterNSW’s water monitoring data.

55 At all relevant times, the WaterLive app could be used to access the following information for the Billilingra Gauge:

a. the water level (river height) at the gauge as at the most recently recorded hourly interval (including a time stamp of when this value had last been updated);

b. the recorded flow rate at the gauge at the most recently recorded hourly interval (including a time stamp of when this value had last been updated).

56 The data published by WaterNSW on the real-time-data website also includes a Daily River Report for the Murrumbidgee River, which publishes the water level and flow rate at different gauges along the river (including the Billilingra Gauge) as at 6 am every day. The Daily River Reports for 19 November 2019 to 13 December 2019 are at Tab K.

57 Once quality assured data has been generated in accordance with the steps outlined at [50]-[52] above, it replaces the provisional data published on WaterNSW’s website (which is referred to at [54] above).

The Offending Conduct

58 In November 2019, Luke Kimber planted summer fodder crops at Dromore Station, including corn. He used water extracted from the adjacent Murrumbidgee River under Ken Kimber’s WALs to irrigate those crops.

59 During certain periods between 20 November 2019 to 12 December 2019, Luke Kimber extracted a total volume of approximately 95.18 megalitres of water from the river for irrigation of the corn, lucerne and other crops on Dromore Station in circumstances when the taking of water was prohibited by the Flow Condition in WALs 33305 and 33291.

60 The extraction of this approximately 95.18 megalitres of water in contravention of the Flow Condition constitutes the offending conduct in these proceedings. In respect of the taking of that water, Ken Kimber is guilty of the offences charged against him under s 60B of the WM Act as the holder of the WALs and Luke Kimber is guilty of the offences charged against him as the person who took the water.

61 The circumstances of the offending conduct is further explained below.

62 Luke Kimber took water pursuant to WAL 33305 via Works 1 and 2, when the flow rate in the Murrumbidgee River was below 27ML/day at Billilingra Gauge, as specified in the Sequence 1 charge as follows:

Seq	Pumping period	Flow in river at start and finish (quality assured data)	Flow in river at start and finish (live data)	Height of river at start and finish	Quantity of water taken
Work 1
1(a)	20/11/19 20:15	12.338 ML/day	11.826 ML/day	0.592	3.28 ML
-	-	-	-
21/11/19, 10:00	10.590 ML/day	10.325 ML/day	0.583
1(b)	23/11/19 17:00	6.187 ML/da	6.984 ML/day	0.556	3.75 ML
-	-	-	-
24/11/19 8:45	5.667 ML/day	6.554 ML/day	0.552
1(c)	24/11/19 13:30	4.927 ML/day	5.938 ML/day	0.546	5.32 ML
-	-	-	-
25/11/19 15:00	1.945 ML/day	3.227 ML/day	0.514
1(d)	2/12/19 8:15	1.589 ML/day	2.888 ML/day	0.509	9.23 ML
-	-	-	-
3/12/19 22:30	9.297 ML/day	9.384 ML/day	0.576
1(e)	11/12/19 18:45	13.390 ML/day	12.878 ML/day	0.597	11.12 ML
-	-	-	-
13/12/19 11:00	13.390 ML/day	12.878 ML/day	0.597
Work 2
1(f)	20/11/19 9:00	13.390 ML/day	12.878 ML/day	0.597	3.83 ML
-	-	-	-
21/11/19 00:15	12.338 ML/day	11.826 ML/day	0.592
1(g)	22/11/19 6:30	8.270 ML/day	8.620 ML/day	0.57	16.61 ML
-	-	-	-
25/11/19 12:00	2.076 ML/day	3.368 ML/day	0.516
1(h)	25/11/19 13:30	1.945 ML/day	3.227 ML/day	0.514	4.38 ML
-	-	-	-
26/11/19 8:15	0.595 ML/day	1.676 ML/day	0.488
1(i)	1/12/19 17:00	1.339 ML/day	2.634 ML/day	0.505	4.00 ML
-	-	-	-
2/12/19 9:30	1.589 ML/day	2.888 ML/day	0.509
1(k)	11/12/19 18:45	13.390 ML/day	12.878 ML/day	0.597	3.61 ML
-	-	-	-
12/12/19 12:30	12.338 ML/day	11.826 ML/day	0.592

63 Luke Kimber took water from the Murrumbidgee River pursuant to WAL 33291 via Work 5, when the flow rate was below 27ML/day at Billilingra Gauge, as specified in the Sequence 12 charge as follows:

Seq	Pumping period	Flow in river at start and finish (quality assured data)	Flow in river at start and finish (live data)	Height of river at start and finish	Quantity of water taken
Work 1
12	20/11/19 13:30	12.338 ML/day	11.826 ML/day	0.592	22.41 ML
(a)	-	-	-	-
25/11/19 07:30	3.094 ML/day	4.378 ML/day	0.529
12	1/12/19 20:00	1.460 ML/day	2.759 ML/day	0.507	2.59 ML
(b)	-	-	-	-
2/12/19 9:00	1.460 ML/day	2.759 ML/day	0.507
12 (c)	11/12/19 17:15 - 12/12/19 13:00	13.390 ML/day - 12.544 ML/day	12.878 ML/day - 12.031 ML/day	0.597 - 0.593	1.68ML
12	12/12/19 17:15	12.962 ML/day	12.449 ML/day	0.595	3.37 ML
(d)	-	-	-	-
13/12/19 11:00	13.390 ML/day	12.878 ML/day	0.597

Stop Work Order – 13 December 2019

64 On 12 December 2019, the Natural Resources Access Regulator (NRAR) was forwarded a complaint made to WaterNSW by an employee of the ACT Government in relation to irrigation activities at Dromore Station.

65 At approximately 3.15 pm on 12 December 2019, NRAR authorised officers Graeme White and Charlotte Whiteley attended Dromore Station. Upon arriving at the site, Mr White observed that certain pumps on the property were operating, which appeared to be in contravention of the Flow Condition having regard to the live flow rates published on WaterNSW’s WaterLive application at the time.

66 On 13 December 2019, Mr White signed a Stop Work Order addressed to Luke Kimber under s. 327(2) of the WM Act (a copy of which is at Tab L). On the same date, NRAR authorised officers David Thomas and Charlotte Whiteley attended Dromore Station and served a copy of the Stop Work Order on Luke Kimber.

67 On being served with the Stop Work Order, Luke Kimber ceased irrigating forthwith.

Cooperation with Authorities

68 On 4 March 2020, NRAR authorised officers David Thomas and Jennifer Davis attended Dromore Station and inspected the property. The officers took photographs of the pumps and other infrastructure located on the property.

69 On 22 April 2021, NRAR Senior Investigators Andrew Mannall and Jennifer Davis conducted a further inspection of Dromore Station. Mr Mannall and Ms Davis took photographs of the water supply works on the property and recorded relevant GPS coordinates.

70 Ken Kimber and Luke Kimber cooperated with the NRAR authorised officers for the purpose of and during these inspections and otherwise co-operated with the NRAR officers during the course of the NRAR investigation. They voluntarily participated in records of interviews on 4 March 2020 and 23 April 2021 in each case declining to exercise their right to have a legal representative or support person present during the interview.

71 During his voluntary interview on 23 April 2023, Luke Kimber said, among other things:

a. His dad does the financial side of things.

b. His dad has no involvement with the operation of the irrigation aspect of the farm.

c. He was the only person who has operated the pumps during the offence period.

d. His dad does not do any of the starting or the stopping of the pumping, or deciding what needs water.

e. He was not given a copy of a letter with the change to the cease-to-pump condition. He was aware of the old surface licence condition specifying a gauge height of “0.58”. He saw a copy of it or his dad told him about it.

f. He never looked at the flow of the river. He only looked at the height.

g. To check the height of the river at the Billilingra gauge, he looked at the WaterLive app.

h. He definitely did not check the water level every time before starting pumping but he did look at the Water Live App regularly.

72 In response to the question: “What’s your knowledge of the water access licences that are associated with them? Like conditions, how you take the water”, Luke Kimber said, “Yep. Um, yeah, well we’re aware of the, um, twenty seven megs that we always worked on fifteen”.

73 In relation to the attendance by NRAR officers at Dromore Station in December 2019, he also said:

(a) “they said it’s now twenty-seven. So that was the first time we’d ever seen anyone or heard from anyone about the levels, um, and especially about the change, like, I hadn’t had a copy of that.”

(b) “they came and told us, no, it’s now twenty seven, it’s nothing to do with the height, it’s just twenty seven megs a day”.

Evidence

12. The NRAR tendered the Court Book tabs 1 to 9 containing the summonses, SOAF, objections and written submissions (Ex A).

13. The defendants read the following affidavits:

1. Mr Kenneth Kimber farmer sworn 6 August 2023;

2. Mr Luke Kimber farmer affirmed 7 and 18 August 2023; and

3. Ms Brademann Upper Murrumbidgee Demonstration Reach facilitator affirmed 9 August 2023.

14. The defendants tendered the following exhibits:

1. Court Book tabs 21 to 32 containing lay affidavits and character references (Ex 1);

2. Three media articles related to the prosecution (Ex 2):

1. NRAR media release dated 19 December 2022 titled “Prosecution starts for alleged repeated unlawful pumping during drought”;

2. An article published in The Monaro Post on 21 December 2022 titled “Prosecution starts for alleged repeated unlawful pumping during drought”; and

3. An undated article published in The Weekly Times titled “Irrigators facing millions in fines for water offences”.

3. NRAR regulatory policy published in September 2021 (Ex 3). [I note this document was ultimately not relied on by the defendants.]

Affidavit of Mr Kenneth Kimber

15. Mr Kenneth Kimber affirmed an affidavit 6 August 2023. He and his spouse own five farms including Dromore Station totalling 7,300 acres of farmland throughout NSW and Victoria and employing 30 people. The details of the ownership and operation of Dromore Station provided by Mr Kenneth Kimber are summarised in pars 3-14 of the SOAF above in [11]. Mr Kenneth Kimber was aged 74 years old at the time of the hearing.

16. Mr Kenneth Kimber and his spouse are co-licence holders of 18 access licences. He deposed that in 40 years they never had any problems with any of their access licences. He also holds a stock and domestic water licence for their farm located in Victoria.

17. In about November 2019 the crops grown at Dromore Station were corn, lucerne, millet and cereal. The irrigation system at Dromore Station comprised 6 centre pivot irrigators and fixed sprinklers as details in pars 11-12 of the SOAF above in [11]. Mr Luke Kimber turned the pump on at 10pm and the irrigation system completed a set rotation of watering for a specified time.

18. Mr Kenneth Kimber formed the view that Dromore Station had a very reliable water supply based on extensive research he carried out when he was interested in purchasing the property. He studied graphs of the flow rate of the Murrumbidgee River at Billilingra gauge back to 1968. He found the height was above the 0.58m licence requirement (in accordance with former licence condition 7) almost all the time with the occasional fluctuation below that height usually for a period of days in February or March. He deposed the river height was not something the defendants had needed to focus on at monthly, weekly, daily or at 15 minute intervals. He knew their water usage was well within their entitlements under the access licences. Mr Kenneth Kimber estimates the defendants used less than half of their allocations.

19. Mr Kenneth Kimber set out his knowledge of the former licence condition 7 that applied to Dromore Station as summarised in pars 15 and 16 of the SOAF above in [11]. He had told Mr Luke Kimber about the former licence condition 7 to cease pumping when the river height was at 0.58m. He could not recall whether he provided Mr Luke Kimber a copy of the former surface water licence. He never instructed Mr Luke Kimber on what to do prior to or during the irrigation process. Mr Kenneth Kimber had always operated on the basis the relevant condition required cessation of pumping when the river height was less than 0.58m as he believed that was the requirement until December 2019 when the NRAR investigators attended Dromore Station. That was the first time he became aware of the flow condition that required pumping to cease if the flow of the river was at or below 27ML per day.

20. Mr Kenneth Kimber received written notice from the Department of Primary Industries on 25 March 2014 that conditions had not been developed for the converted access licences and that the conditions of the previous surface water licences applied in the meantime.

21. In about 2015 or 2016 the defendants had water meters voluntarily installed on each of their pumps as part of the government initiative called Southern Valleys Metering Project. Not all irrigators along the Upper Murrumbidgee are metered and this remains the case.

22. On 17 February 2017 Mr Kimber received a letter from the Department of Primary Industries inviting submissions in response to a Status and Issues Paper that had been released for the Murrumbidgee surface water resource. At about this time there were rumours circulating about what the new cease to pump rules may be in the community. Mr Kenneth Kimber sent a submission to the Department of Primary Industries on behalf of a group of irrigators on 31 March 2017. Mr Kenneth Kimber received no response to the submission. He had a discussion with a water planner at the Department of Primary Industries on 19 May 2017 who ‘assured’ Mr Kenneth Kimber that there was no proposal to change the cease to pump rules. There was no further engagement or stakeholder consultation following the submission made on 31 March 2017.

23. On 19 February 2018 Mr Kenneth Kimber received amended versions of the access licences enclosed in letters entitled ‘Conditions of Water Licences and Approvals.’ The letters arrived in a large bundle. He gave them to an employee to file as he had no reason to believe the letters contained any changes to the access licences based on his prior communications. He believed the letters were routine and address general matters. He deposed that he would have dealt with the correspondence if he had any reason to believe there were changes to the access licences. [I note this correspondence is also summarised in pars 30-39 of SOAF above in [11]).

24. Mr Kenneth Kimber was shocked when he learnt about the commencement of proceedings. He believed Mr Luke Kimber and he had adequately answered NRAR’s questions during the first interview on 4 March 2020 and had fully cooperated. The NRAR officers were treated courteously and assisted by Mr Luke Kimber when they issued the stop work order on 13 December 2019. At the interview on 4 March 2020 he believed his explanation for the situation had been accepted by the NRAR officers. A second interview was conducted on 23 April 2021 with different NRAR officers who investigated Dromore Station with drones, cameras and measuring equipment. He had not been informed the breaches were considered to be of the most serious kind. At no stage had he anticipated NRAR would prosecute them three years after first contact with NRAR officers.

25. Mr Kenneth Kimber deposed that during the interviews he made it clear the entire fault was his as the person who dealt with the access licences. He admitted he did not notice the access licences were reissued with the flow condition for the reasons attested to above in [22]. Consequently, he did not inform Mr Luke Kimber of the flow condition.

26. Mr Kenneth Kimber deposed that there was never a deliberate intent to breach the rules. Since the requirement was brought to his attention in December 2019 he understands that Mr Luke Kimber is fully aware of the flow condition and that the river flow is closely monitored.

27. Mr Kenneth Kimber deposed that he takes his family, environmental and societal responsibilities very seriously. He does not have a criminal record and has never been in trouble with the law or any authority. He is an active participant in the community and the dairy industry. He set out his participation in the following activities and projects:

1. He is the founding director and financial director of The Australian Dairy Conference held annually around Australia. At the 2019 conference he spoke on how his farm has met its environmental and animal welfare obligations.

2. He has participated in various forums and conferences in Australia and overseas. In 2011 he spoke at the European Dairy Farmers Congress in the United Kingdom.

3. His farms including Dromore Station regularly host visits from schools, politicians, bank executives and international delegates.

4. He is part of a biological farming client group who visit each other’s properties in Victoria and Tasmania.

5. His farms are part of the Bega Environment Management Systems (BEMS) scheme organised by Bega Cheese. Bega Cheese has accepted and funded the defendants’ rectification proposals for revegetation, tree planting, laneways and creek crossings. The defendants have provided an ongoing commitment to maintain these projects.

6. On 29 September 2022 he gave a presentation to Commonwealth Bank officers about efficiencies in the dairy industry.

7. He and Mr Luke Kimber participated in the Upper Murrumbidgee Catchment Network forum on 14 November 2022 called Working Together for the River Water.

8. He recently attended a seminar on implementing farm carbon management plans and is involved in developing a whole farm carbon management plan for Kimber’s Dairy to decrease emissions and increase sequestration.

9. He delivered a talk to Bega Circular Valley a group working towards reducing waste to the environment on how Kimber’s Dairy reduces waste including nutrient management plans, healthy soils, recycling cow waste, no use of artificial nitrogen fertilisers, BEMS projects to protect waterways and solar power generation.

10. He and Mr Luke Kimber have worked with Bega and Cooma Local Land Services and the Upper Murrumbidgee Catchment Management to remove willows from the river and assist in erosion control, tree planting and soil conservation.

28. Mr Kenneth Kimber deposed that this has been the most upsetting period of his life. This is the first time he has been treated as a criminal rather than a respected member of the farming community. He deposed that he has always worked cooperatively with authorities.

29. The proceedings have been a major and costly disruption to the farming operation. His family have been experiencing stress and physical and mental health issues over the course of these proceedings. Some of his family are no longer interested in farming.

30. Mr Kenneth Kimber made the following statements of apology in his affidavit:

70 I am extremely sorry for any loss or damage my offending may have caused. I had no intention of breaching any conditions of the water licences. I acknowledge that the watering during the charge period contributed to keeping the plants alive but I did not set out to break the rules. In fact, had I known that the cease to pump condition had changed from 0.58 meters to a low flow cease to pump at 27 megalitres, I would have suggested to Luke that we not plant corn at that time.

…

93 I am very sorry that I did not read the communications in February 2018 which contained the new licence condition describing the cease to pump rule at 27 megalitres. I am also sorry for not meticulously monitoring the river flow rates. I have now learned what is expected, the very hard way. I have watched the impact of these proceedings on my family. I have been personally affected, especially because the charges also refer to a period that consisted of fire and great danger to lives and property. The two events are connected in my mind and late 2019 is a time I would like to forget.

94 I know that I will not rest or feel relaxed until these proceedings are wholly at an end. I sincerely apologise for the taking of the 95.18 megalitres of water from 20 November 2019 to 13 December 2019.

95 In summary, I can only apologise for not ensuring that the river gauge flow rate was meticulously monitored. I have now learnt what is expected and I offer to work with NRAR and WaterNSW to sort out some improved practical systems and procedures for the ongoing monitoring.

Affidavits of Mr Luke Kimber

31. Mr Luke Kimber affirmed an affidavit dated 7 August 2023. He has been the farm manager of Dromore Station since September 2010. He is also a qualified diesel mechanic and the owner of a small truck haulage business. His truck haulage business operates three trucks with one full time and one casual employee.

32. Mr Luke Kimber is aged 46 years old. He is married with three dependant children. He and is his wife own three properties of which two are mortgaged. He has completed a number of courses on agriculture, farm management, quick milk harvesting, farm safety and in 2002 completed the water wise irrigation management course.

31. Mr Luke Kimber deposed that when the defendants were interested in purchasing the property Mr Kenneth Kimber met with the owner of Dromore Station who showed him two water licences. Mr Kenneth Kimber told him that each licence required pumping to cease when the river height was at 0.58m or below. He recalled that Mr Kenneth Kimber told him the water was really secure following the research he conducted as described above in [18].

32. Dromore Station produces feed and fodder. Sheep are also kept on the property. One other permanent employee and two casual employees also work at Dromore Station.

33. Mr Luke Kimber is responsible for the day to day farm duties and decisions at Dromore Station and reports to Mr Kenneth Kimber on the farm’s operations. In November 2019 Mr Luke Kimber made decisions about when to irrigate the crops and was responsible for turning the pumps that used timers on for irrigation.

34. In November and December 2019, the main crops grown at Dromore Station were corn, lucerne and cereal. Corn relies on regular water and does not recover from the absence of moisture. The defendants stopped growing corn in 2020 as a direct result of the regulatory investigation that led to these proceedings.

35. Mr Luke Kimber read the surface water licences when Mr Kenneth Kimber showed them to him before the purchase of Dromore Station. He does not recall having a copy of the surface water licences. When he read the surface water licences he had understood that each licence contained a condition that required the defendants to stop irrigating if the height of the Murrumbidgee River fell below 0.58m measured at the Billilingra Gauge. The Billilingra Gauge is located 8km away from Dromore Station and is accessible via a 30 minute drive using four wheel drive vehicle only. He has only been to the Billilingra Gauge on two occasions.

36. Until 13 December 2019 he had always understood that the cease to pump condition on the access licences was triggered by the height of the river being less than 0.58m (in accordance with former licence condition 7). On 13 December 2019 when the NRAR investigators attended Dromore Station and issued him a stop work order he learnt the access licences required him to cease pumping if the flow of the river was 27ML or less per day (in accordance with the flow condition).

37. From his experience as Dromore Station manager he knew that the water supply from the river was consistently reliable and secure for irrigation and that the amount of water extracted from the river was well within the access licences. He calculated that Dromore Station used approximately half of its annual allocation when the meters were first installed on Dromore Station.

38. From his experience the river height at the Billilingra Gauge was consistently above the 0.58m height limit. Every time he checked the Bureau of Meteorology (BOM) app or the WaterLive app data the river height was above 0.58m. While he frequently checked the river height data, he did not check the river height data every time he pumped or systematically. From his experience he was confident the river height would not fall below 0.58m. Prior to 13 December 2019 he had not accessed data about the flow of the river in considering whether to irrigate. After 13 December 2019 he began checking the WaterLive app to monitor the flow of the river on each occasion before pumping started.

39. When deciding whether to irrigate he took into account the type of crop and its stage of growth, the soil moisture around the crop and the cost of power. He decides whether to irrigate in the afternoon. He sets a pump to start at 10pm until about 7am during the off-peak electricity period.

40. The height of the river fluctuates depending on who else is watering around Dromore Station. He estimated there were approximately nine irrigators near Dromore Station, with 12 to 14 pumps, who are subject to the same flow condition. He deposed that many of the irrigators are not metered and pump any volume of water at any time.

41. Mr Luke Kimber does not recall the specific events of watering that are the subject of the charges. Irrigating was part of the day to day routine at Dromore Station and there had been nothing unusual about his routine for him to remember each separate event of watering until 13 December 2019. During the charge period the river continued to flow at all the Dromore Station pump sites. He observes the river every day.

42. In light of a fire at one of the family farms in 2018, the drought conditions in 2019 and the terrible fires in January 2020, he thought the NRAR officers were investigating a very minor issue at Dromore Station. No one informed him how serious the matter was. He was not given any specific information by the NRAR officers about the investigation including the dates and times of the offences despite requesting the information during the second interview on 23 April 2021.

43. Mr Luke Kimber was shocked when he learned of the commencement of the court proceedings against him in November 2022 three years after the date of the offences and given the time that had passed since his interview on 4 March 2020 and then on 23 April 2021. He was not warned about the court proceedings.

44. Mr Luke Kimber takes the proceedings seriously as he is physically and mentally invested in Dromore Station, working seven days a week during the six to eight month crop growing period each year. Mr Luke Kimber made the following statements of contrition, remorse and apology in his affidavit.

88 I now understand that throughout the period of November/December 2019, the water licences for Dromore had a cease to pump condition in operation that was triggered when the flow rate at the Billilingra Gauge is 27 megalitres per day or less. I did not know that until I was informed of that by investigators on 13 December 2019. As I have said, I believed that the cease to pump condition operated when the river height at the Billilingra Gauge was 0.58 metres or lower.

89 However, I also realise that in relation to some (although not all) of the pumping the subject of the offences in November/December 2019, the river height at the Billilingra Gauge was below 0.58 metres and, at those times, I should not have irrigated even with my belief that the cease to pump condition was based on a 0.58m river height.

90 I realise now that I was complacent and not diligent enough in approaching the issue of the water level and flow in the river when I irrigated in November and December 2019. I realise that I should have been more careful to ensure that I had a correct and precise understanding about the effect of the cease to pump condition. If I had done that, which I should have, I would have known in November/December 2019 that the cease to pump condition had been amended prior to that time so that it operated to prohibit pumping when there was a flow rate of 27 megalitres or less per day, measured at the Billilingra Gauge, and that it was not based on the river height. Even with my mistaken belief that the cease to pump condition operated on a river height of 0.58 metres, I should have checked the river height every time before I pumped to identify the river height, which I failed to do, and I should not have assumed that it would be OK to pump, which I did.

91 I am very sorry that I pumped water from the river during the periods the subject of the charges when the cease to pump condition applied and prohibited me from pumping. I had no intention of breaching any conditions of the water licences and I did not realised I was breaching the cease to pump conditions.

47. Mr Luke Kimber deposed to taking the following actions after the Stop Work Order was issued on 13 December 2019:

1. He commenced using the WaterLive App. He regularly checks the WaterLive App and BOM App including prior to irrigating, during irrigating and after irrigation. He has set the WaterLive App with an alarm that is triggered if the flow is at 40ML; and

2. Since 2019 the defendants have stopped growing corn and millet as corn is entirely reliant on regular water supply.

48. Mr Luke Kimber’s experience with the law is limited to three driving related fines.

49. Since about 2014 he has been actively involved in the Upper Murrumbidgee Demonstration Reach (UMDR) organisation that works to improve and protect the health of the Murrumbidgee River. Projects include removing debris from the river, stabilising banks, removing willows from the river and carrying out research on the Macquarie Perch. He helps identify places in the river that require attention, provides heavy machinery to carry out works and burns piles of debris and willows removed from the river at his own cost. He feels strongly about protecting the river.

50. Since 2015 he has worked closely with the Local Land Services to assist them with RiverCare projects such as combating erosion and carrying out willow control. He has removed snap willows form the Murrumbidgee River and assisted in ‘rocking banks’ to prevent erosion. He funds some of the projects. For the past three years he has worked with the Department of Planning and Industry on the river and to assist with the tree removal. He has never asked for payment, nor would he accept payment if it was ever offered.

51. Mr Luke Kimber has always had a vision to restore Dromore Station and their section of the Murrumbidgee River to a pristine state. He stated he will continue to improve the farm and river for the benefit of the environment, the fish and the community. He acknowledged that the river is his lifeline and business and that Dromore Station would not exist without it.

52. Mr Luke Kimber affirmed an affidavit dated 18 August 2023 concerning the email from Mr Reinfelds dated 2 November 2018 (referred to in par 44 of the SOAF above in [11]). This affidavit does not need to be summarised as the NRAR accepted in the course of the hearing that Mr Luke Kimber had not seen the email from Mr Reinfelds dated 2 November 2018 until it was shown to him on 23 April 2021.

Character references

53. All character references relied on by the defendants expressly acknowledge the charges and the pleas of guilty made by Mr Kenneth Kimber and Mr Luke Kimber.

54. Ms Brademann is the facilitator of the UMDR established in 2010 to improve the health of 320km of the Upper Murrumbidgee River between Tantangara and Burrinjuck Dams and affirmed an affidavit 9 August 2023 attesting to the defendants’ character. The UMDR worked collaboratively with government agencies, research centres, environmental organisations, universities, and local communities to undertake on ground works to rehabilitate and protect the river from degradation. Many projects required the permission and support of adjoining landholders.

55. Ms Brademan met Mr Luke Kimber in about 2014 when he became involved in UMDR projects along the upper Murrumbidgee River to improve its health and support Macquarie Perch conservation. The charges against Mr Luke Kimber were not in keeping with her previous experiences dealing with Mr Luke Kimber who was always mindful of any legal obligations and requirements for river related matters such as instream works.

56. The UMDR value the partnership with the defendants and look forward to ongoing collaboration in the future. Mr Luke Kimber has been involved in the following UMDR projects and events:

1. Between 2014 and 2021 Mr Luke Kimber authorised access to the upper Murrumbidgee River through Dromore Station for the installation and maintenance of research monitoring equipment for the Macquarie Perch.

2. Between 2016 and 2023 the Soil Conservation Service undertook three bank stabilisation/erosion remediation projects at Dromore Station to stabilise eroding banks. Mr Luke Kimber funded two of the projects in 2016 and 2023 that will help protect water quality in the long term.

3. In October 2017 Mr Luke Kimber attended a Willows, Weeds and Waterways Field Day that raised awareness about the impacts of riparian weeds on the health of waterways and discussed how landholders could help improve local waterways.

4. Since 2018 Mr Luke Kimber assisted in various projects to control and remove willow trees improving riparian conditions at Dromore Station. He removed debris, including burning willow debris piles, that fell outside the scope of UMDR projects.

5. Since 2020 Mr Luke Kimber authorised the installation of fish hotels at Dromore Station that improve instream habitat for the benefit of the Macquarie Perch and recreational fishing.

6. Mr Luke Kimber was involved in the ‘Reaching for Recovery of the Macquarie Perch in South East NSW’ project funded from 2018 to 2023. His support enabled greater community awareness of Macquarie Perch in the Upper Murrumbidgee River, mapping of habitat and riparian condition along the river frontage at Dromore Station down to the Numeralla and Murrumbidgee River confluence and improvement of the riparian corridor via willow control.

7. Mr Luke Kimber and Mr Kenneth Kimber attended the Upper Murrumbidgee Catch Network’s Working Together for the River Forum in November 2022. Mr Kenneth Kimber gave a presentation highlighting that supporting and improving the health of the Murrumbidgee River was a key value for his family as a landholder as well as for their business.

57. Dr Ireland PhD has known the defendants for 35 years and provided a character reference dated 31 July 2023. She expressed gratitude for their consistent support of projects for the low-fee, rural Anglican school where she is board chair. She has observed them to be honest, hard-working, intelligent farmers who are trustworthy, responsible, respectful and fair-minded. She attested that the defendants diligently serve their local communities by volunteering to assist others and helping with constructive projects.

58. Mr Irvin AM has known Mr Kenneth Kimber for over 30 years and found him an extraordinarily honourable, fair minded and considerate man. He provided a character reference dated 31 July 2023. He attested to the defendants’ values being their willingness to help others, their active participation in business and community organisations, their capacity to be open minded and innovative, their respect for others and treatment of everyone with manners, grace and kindness. He attested to the defendants being leaders that demonstrate good farm practice, innovation and environment management. They are the largest milk supplier in the Bega Valley and host many industry tour programs on their property. The defendants have been active participants in the BEMS scheme which has included:

1. implementing the Biodiversity Brogo River Rehabilitation project on their land in 2005;

2. executing the Riparian Wetland Rehabilitation project in 2007;

3. completing a biodiversity planning project in 2013;

4. undertaking a BEMS sustainability assessment in 2015; and

5. completing a Bega sustainability and growth effluent management upgrade in 2016.

59. In addition, Mr Irvin AM attested that the defendants were early adopters of regenerative land practices, industry leaders in the dairy beef market, active supporters of dairy youth training programs and farm work health and safety initiatives. He described the defendants as contributors, innovators and knowledge sharers in the farm business, conscious of the wellbeing of staff and animals, and leaders in sustainability and environmental practices. Mr Irvin AM is confident the breaches of the access licences were unintentional and that the defendants will ensure the breaches do not occur again.

60. Mr Ireland has known the defendants for 35 years and provided a character reference dated 4 August 2023. He was director and manager of a farm service business. The defendants have been very significant and appreciated customers of that business. In his experience the defendants consult widely, listen carefully and make thoughtful decisions that contribute to the success of their business, the wellbeing of their community and the sustainability of the ecosystems that they are part of. He is aware of the defendants’ contributions to the community including providing opportunities for university students to gain practical experiences on their farms.

61. Mr Radford has been tax agent and accountant for Mr Luke Kimber and his family for more than 20 years and provided a character reference dated 15 August 2023. Mr Radford dealt with banks and suppliers on behalf of the defendants during this period. In his experience the defendants have always had an excellent reputation and standing in the community as honourable people who stand by their word and meet their commitments. Mr Radford attested to Mr Luke Kimber being an individual of integrity and a person who takes responsibility for his actions. The defendants have always met their financial obligations and have no disgruntled financiers or suppliers.

62. Mr and Mrs Povey have known Mr Luke Kimber for about 10 to 12 years and provided a character reference dated 16 August 2023. They are owners of a truck and farm machinery repair business. They attested to their dealings with Mr Luke Kimber always being positive. They described him as an honest and trustworthy person whose integrity they have never had any reason to question.

63. Ms Schofield has known Mr Luke Kimber and his family for 13 years and owns a farm adjoining Dromore Station. She provided a character reference dated 16 August 2023. She attested to the defendants being well respected members of the Cooma and Bega Valley community. Mr Luke Kimber’s family display the qualities and values of fairness, empathy, supportiveness, honesty and hard work. Mr Luke Kimber is a trusted mentor who has guided Ms Schofield’s family with his knowledge, skills and experience and provided assistance and emotional support whenever they needed help. She attested to Mr Luke Kimber assisting the local community and NSW. For example, contributing hay in the Rural Aid campaign and donating hay to locals schools and shows. Ms Schofield trusts Mr Luke Kimber to care for her children. Ms Schofield considers Mr Luke Kimber a friend who is extremely fair in his judgement of others and displays an enormous amount of integrity and honesty.

64. Mr Max Kimber SC is the younger brother of Mr Kenneth Kimber and uncle to Mr Luke Kimber. He provided a character reference dated 17 August 2023. When Mr Kenneth Kimber told him of their interview with the NRAR officers he asked why they had not sought legal advice. He recalled Mr Kenneth Kimber responded “What for? We have nothing to hide.” He attested that Mr Kenneth Kimber is a successful farmer who is a longstanding and highly respected member of the Bega and Cooma farming communities. He attested to Mr Kenneth Kimber being a well-known and regular newspaper and radio commentator on issues confronting dairy farmers and an influential advisor on rural industry matters through his membership in various farming industry bodies.

65. Mr Max Kimber SC further attested that Mr Kenneth Kimber and Mr Luke Kimber are recognised as men of integrity and candour. Mr Kenneth Kimber is prepared to share his ever-expanding expert knowledge of the most efficient, cost effective and environmentally friendly farming practices with other farmers and is a spokesperson in various State and Federal forums to advance, protect and otherwise serve the best interests of farmers in the dairy industry generally. Mr Luke Kimber is committed to the land, the utilisation of environmentally sustainable farming practices and to sharing his ever-growing body of knowledge about such practices with other farmers in the Cooma district.

Objective seriousness

66. The NRAR submitted that it is open to the Court to find that the offences committed by the defendants fell somewhere below the mid-range of objective seriousness but not at the lowest end of the range. The offending occurred on 13 days over a period of 24 days and involved the unlawful taking of 95.18ML of water during a time when the Murrumbidgee River at the Billilingra Gauge recorded very low flows.

66. The defendants submitted the offences fall in the very low range of objective seriousness. The offences were an unintentional and unconcealed contravention of a complex regulatory scheme that poses particular challenges for water users in unregulated rivers in circumstances where the defendants received no meaningful guidance, notification or warning from the regulator administering the scheme and the offences involved a relatively small amount of water.

Harm to regulatory scheme

68. The NRAR submitted that the extent to which a defendant’s conduct would offend against the legislative objective expressed in the statutory offence is relevant to sentencing: Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 (Rae) at [15]. The regulatory scheme in the WM Act relies on water users adhering to the terms and conditions of their access licences in order to attain the objects in the WM Act (in this case ss 3(a), (b), (e) and (h)) and to realise the water management principles of that Act (in this case ss 5(2) and (3)). Harm may be caused by undermining the regulatory scheme in the WM Act which seeks to prevent environmental damage: Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 at [23]; Environment Protection Authority v Zoya Investments Pty Ltd [2022] NSWLEC 149 at [88]. In this case, a breach of the flow condition harms the regulatory scheme by creating a risk of environmental harm which the condition was designed to mitigate.

69. The defendants submitted that they did not act deceitfully or surreptitiously. Unlike most of the water users in their district, the defendants’ extraction of water from the river was metered. The defendants were well aware of that. There was no attempt by them to tamper with the meter or otherwise conceal or disguise the extraction of the water the subject of the offences or the volume extracted. Data from the meters, which are the property of the NRAR and which record the volumetric flow rate every 15 minutes is sent telemetrically directly to the NRAR.

70. The NRAR’s submissions sought to emphasise harm to the regulatory environment essentially in isolation from the context of and the circumstances giving rise to these offences. While I accept the NRAR submissions at a broad level, and these are reflected in cases such as Water NSW v Peter James Harris and Jane Maree Harris [2023] NSWLEC 33 at [40] inter alia, all offences can be said to harm the statutory scheme under the WM Act and the extent to which harm in that regard is caused by a particular defendant’s conduct is related to the objective seriousness of a particular offence. I find below that the objective seriousness of these offences is very low.

71. As the defendants submitted, cases involving deceit and concealment such as Barnes, Chief Regulatory Officer, Natural Resource Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5 can reasonably be described as undermining the regulatory scheme. In Payson the defendant extracted water in the knowledge a meter was under-recording the volume of water taken: at [132].

State of mind

72. The defendants’ respective states of mind are not elements of any of the offences. The criminality of an offence is informed by the reason for the offence: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Bentley v BGP Properties Pty Limited [2006] NSWLEC 34 (Bentley) at [237]. A strict liability offence committed intentionally, recklessly or negligently is objectively more serious than one committed accidentally: Rae at [42]-[43], none of which is pressed by the NRAR. The NRAR submitted that the defendants’ conduct could be characterised as careless, I infer thereby intending to suggest that the conduct giving rise to the offences should not be considered as solely accidental. No authority was provided by the NRAR to support the submission that carelessness, meaning ‘not paying enough attention to what one does’ according to the Macquarie Dictionary, online ed, September 2023, sounds in criminal proceedings as a relevant state of mind where criminal negligence is not alleged by a prosecutor.

73. The defendants submitted the offences were committed over a short period of time. The offences were committed on 13 days over a period of 24 days. This should be contrasted to cases in which the unlawful taking of water was over the course of one or more years.

74. Plath of the Department of Environment and Climate Change v Fish; Plath of the Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 at [81] stated:

[81] To amount to criminal negligence, the degree of carelessness must be such as to show such a disregard for the objects of the statute as to amount to a crime against the state (R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8; see also Andrews v DPP [1937] AC 576 per Lord Atkin at 583; applied in Cittadini v The Queen [2009] NSWCCA 302 at [38]-[40]). For there to be negligence, there must have been an indifference to an obvious risk (R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini).

75. I will consider whether carelessness is a fair characterisation of the defendants’ conduct but also consider this should have been better supported by authority by the NRAR rather than a mere submission in terms of relevance to this sentencing exercise.

76. The NRAR submitted that the Court should not accept the defendants’ professed ignorance about the flow condition as they failed to comply with the former licence condition 7 on some occasions (see above in [11] at pars 16). The height of the river was below 0.58m during sequences 1(b), (c), (d), (g), (h) and (i) and sequence 12(b) of the charge period as identified in pars 62-63 of the SOAF above in [11]. This was said to affect the weight the Court should give to the defendants’ evidence which was not otherwise challenged by the NRAR in cross-examination. This curious submission is not relevant to this sentencing exercise as I am unable to see any link between the two matters the NRAR is seeking to link.

77. The offences occurred because Mr Kenneth Kimber did not read the conditions of the access licences dated 19 February 2018 posted to him by the NRAR which changed the cease to pump condition to be the mandatory flow condition. As a result neither he nor Mr Luke Kimber via his father were aware of the new flow condition.

78. The relevant circumstances leading up to the important change to the flow condition which inform why Mr Kenneth Kimber did not read the conditions of the access licences when he received them commence with the purchase of Dromore Station in 2010. Two surface water licences with a cease to pump condition when the river height was below 0.58m and the flow of the river did not exceed 15ML per day were issued for Dromore Station. The Water Sharing Plan for the Murrumbidgee Unregulated and Alluvial Water Sources 2012 (NSW) (WSP) commenced in 2012. Mr Kenneth Kimber’s two surface water licences for Dromore Station were converted to the access licences. Clause 56 of the WSP stipulated the ‘Very Low Flow Class’ for the Murrumbidgee II Water Source, to the effect that water should not be extracted if the flow rate is less than or equal to 27ML per day at Billilingra Gauge. Clause 81 stipulated that access licences must have mandatory conditions giving effect to the flow classes and daily access rules including cl 56. Under s 66(1A) of the WM Act mandatory conditions do not have effect unless they are included in the terms of an access licence. The regulator did not impose a flow condition to that effect in the access licences for Dromore Station at the commencement of the WSP. Former licence condition 7 requiring pumping to cease when the river height fell below 0.58m and the flow rate did not exceed 15ML per day continued to apply (see par 16 of the SOAF above in [11]).

79. The evidence of Mr Kenneth Kimber summarised above in [20], [22] demonstrates his belief that the conditions of the access licences had not changed so that he did not consider he needed to read them and was based on his written correspondence with the Department of Primary Industries and discussion on the telephone with an officer of that Department addressing the cease to pump rules. The letters dated 19 February 2018 from the Department of Primary Industries enclosing the amended access licences did not identify any changes to the mandatory conditions. The defendants’ evidence, supported by the impressive and comprehensive character references set out above, allows the Court to readily infer that had they been aware that the flow condition prohibited pumping when the river flow was at 27ML or less they would have complied.

80. That the change to the flow condition was significant to the defendants is apparent from their unchallenged evidence that had they been aware of the proposed change they would not have planted corn at Dromore Station as the flow condition meant a regular supply of irrigation water could not be achieved, which that crop required (see above in [30], [36]). As a result of the changed flow regime they no long plant millet and corn on Dromore Station (see above in [47(2)]).

81. The NRAR does not have a legal obligation to explain changes in conditions of access licences to licence holders under the WM Act. The absence of any notice or forewarning to the licence holder Mr Kenneth Kimber of the significant change to the flow condition is part of the matrix of events which commences from Dromore Station being purchased in 2010 and the former licence condition 7 continuing for some five years after the WSP 2012 was made which results in the conclusion that the failure of Mr Kenneth Kimber was accidental not careless. Mr Luke Kimber was also not aware of the changed condition, essentially reasonably trusting his father to inform him of any relevant changes. His actions were also accidental.

82. No moral culpability arises from the defendants’ respective states of mind.

Maximum penalty

83. The maximum penalty for each of the offences in the Court is $500,500. The NRAR submitted this is indicative of Parliament’s (and in turn, the community’s) view of the seriousness of the offences: Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; Bentley at [164]. It provides a sentencing yardstick when taken and balanced with all other relevant factors: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31].

84. The defendants submitted that given the very low objective seriousness of the offences these should have been prosecuted in the Local Court where the maximum penalty is $22,000, which submission I agree with. I discuss the objective seriousness of the offences below in [89]-[91]. That there is a large maximum penalty if a matter is prosecuted in the Court has less weight in the circumstances of this case.

Section 364A Water Management Act 2000 considerations

85. Section 364A(1) of the WM Act identifies matters to be considered by the Court in imposing a penalty on a defendant so far as they are relevant.

86. There is no evidence that the unlawful extraction affected other persons’ rights under the WM Act (s 364A(1)(a)). No evidence of market value was tendered so that s 364A(1)(b) does not arise. No evidence was produced by the NRAR of the extent of harm caused or likely to be caused by commission of the offences (s 364A(1)(c)) and therefore the extent to which the person could have reasonably foreseen the harm (s 364A(1)(e)). No practical measures that needed to be taken to prevent, control or mitigate harm were identified by the NRAR as there is no evidence of harm (s 364A(1)(d)). The offences were not committed during a severe water shortage or an extreme event within the meaning of s 364A(1)(g). Neither defendant had an intention to commit the offences as set out above in [81] (s 364A(1)(h)). No submission was made that the water extracted in contravention of the flow condition had been released for environmental purposes (s 364A(1)(j)). No civil penalty has been imposed on the defendants under s 60G (s 346A(1)(k)).

Extent to which the person had control over the causes that gave rise to the offences, s 364A(1)(f)

87. Section 364A(1)(f) identifies as relevant the extent to which the person had control over the causes that gave rise to the offences and is the only subsection of s 364A(1) relied on by the NRAR. The defendants do not dispute that they had control over the causes of the offences.

Section 364A(2)

88. Reliance was also placed on s 364A(2) by the NRAR to submit that the existence of drought conditions at the time of the offences was relevant. The defendants submitted that a relatively low volume of water was extracted, which the NRAR accepted.

Finding on objective seriousness of offences

89. Mr Kenneth Kimber has committed status offences as the holder of the access licences. He had no intention of committing the offences. Mr Luke Kimber who caused the pumping of water to occur not in conformity with the flow condition had no intention of committing the offences. His intention in pumping the water was to irrigate crops. Neither defendant was aware of the 27ML flow condition when the offences occurred. The first time they became aware of the flow condition was when NRAR investigators attended Dromore Station on 13 December 2019 and told them.

90. The offences are of very low objectives seriousness given the absence of actual or likely environmental harm including any evidence from the NRAR tying possible environmental harm to the drought conditions that existed at the time of the offences, the small amount of water taken in breach of the flow condition, no other persons’ rights were affected and the failure to comply with the flow condition by both defendants was accidental. No aggravating circumstances in s 21A(2) of the CSP Act are relied on by the NRAR. That only one subsection of s 364A(1) applies in the circumstances of the offences also supports my finding.

91. Most cases that have come before the Court for taking water otherwise than permitted under the WM Act have involved more significant amounts of water. The defendants consistently extract less water than the access licences permit at Dromore Station. The unchallenged evidence is that the defendants by their estimate have taken only about half of their annual water entitlements at Dromore Station even in dry years (see above in [18], [39]). The defendants have consistently acted in a way which has resulted in water they were entitled to take remaining in the Murrumbidgee River over the course of years.

Application of s 10 Crimes (Sentencing Procedure) Act 1999 (NSW)

92. The defendants seek orders under s 10(1)(a) of the CSP Act that the charges be dismissed with no conviction recorded and no other penalty be imposed on them. I note other orders can be made under s (10)(1)(b) discharging the defendants without penalty under a conditional release order by making such an order under s 9 of the CSP Act.

93. Section 10 of the CSP Act is extracted in part below:

10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders—

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),

…

(1A) A reference in any legislation (including this Act) to an order under this section includes, in the case of an order under subsection (1) (b), a reference to a conditional release order made under section 9 pursuant to that paragraph.

…

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors—

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

…

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

94. The Judicial Commission of NSW Sentencing Bench Book (Update 55, August 2023) provides as follows with respect to the application of factors in s 10(3):

[5-030] Application of factors in s 10(3)

…

The scope for the application of s 10 decreases where the offence is objectively serious and general deterrence and denunciation are important factors in sentencing for the offence: Application by the Attorney General under Section 37 of the Crimes Sentencing Procedure Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305 (the High Range PCA Guideline Judgment) per Howie J at [131]–[132] (see, for example, TC v R [2016] NSWCCA 3 at [58] involving historical child sexual assault committed by a juvenile offender where a conviction and s 9 good behaviour bond (as was then available) was held not to be unreasonable or plainly unjust).

However, the focus must be on the particular conduct of the offender and the circumstances of the offending, rather than the “abstract” offence itself: R v Mauger at [19] applying Walden v Hensler (1987) 163 CLR 561 at 577. At times, the requirement of punishment, denunciation or deterrence are outweighed by the non-recording of a conviction: R v Mauger at [40]. See also, for example, the “unique” case of R v AB [2022] NSWCCA 3 at [53]–[54], [60] where a conditional release order without conviction under s 10(1)(b) imposed for a number of child sexual offences was held not to be manifestly inadequate.

First offenders

It has been held that the dismissal of charges against first offenders in certain circumstances is appropriate. This power reflects the willingness of the legislature and the community to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character: R v Nguyen [2002] NSWCCA 183 at [50]. In R v Ingrassia (1997) 41 NSWLR 447 at 449, the court acknowledged that the “legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court” and the fact that a person is subject to these additional adverse consequences is a relevant consideration in the exercise of the statutory discretion.

…

“Trivial nature of the offence” in s 10(3)(b)

…

R v Paris is to be contrasted with the majority view in R v Piccin (No 2) [2001] NSWCCA 323 at [22] where the court held it is necessary to find that the offence is trivial before a s 10 order can be made. But in Chin v Ryde City Council [2004] NSWCCA 167, the court accepted the appellant’s submission, based upon Hulme J’s dissenting opinion in R v Piccin (No 2) at [25]. Hodgson JA said, in Chin v Ryde City Council, at [38]: “… s 10 may be applied even if the offence is not found to be trivial”…

95. The defendants made the following submissions on the factors the Court must consider:

1. Each of the defendants aged 74 and 46 has no criminal record and on the evidence is of unblemished good character (s 10(3)(a));

2. The offences were not trivial (s 10(3)(b)). The offences are at the very low end of the spectrum of water taking offences under the WM Act. It is not necessary to establish triviality. The conclusion that an offence is not to be categorised as trivial does not disentitle the Court from exercising its discretion under s 10(1): Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213 and R v Paris [2001] NSWCCA 83 at [48]-[49]. Other relevant considerations outweigh any finding the offences were not trivial.

1. Extenuating circumstances have been referred to in this case and strongly support disposition pursuant to s 10(1) of the CSP Act (s 10(3)(c)).

96. The NRAR submitted the Court should decline the s 10 application due to the need for general deterrence. The offences were not trivial and there are no extenuating circumstances. The Court is not assisted by the claimed lack of prior warning about a change to the flow condition.

Finding on section 10 orders

97. Mr Kenneth Kimber is 74 years old with no prior convictions, a successful dairy farmer of excellent character. His unchallenged affidavit evidence above in [27] and that of his character referees (see above in [53]-[61], [64]-[65]) demonstrates that he has made and continues to make substantial contributions to the dairy industry in NSW and his local community in diverse ways. Mr Kimber manages his farm responsibly and appears to be an industry leader in that regard. He has voluntarily installed water meters on Dromore Station enabling close to real time assessment of his water take. His excellent personal qualities are attested to by his referees, all of whom gave references aware of the purpose these would be used for.

98. Mr Luke Kimber is 46 years old and of excellent character as attested to in the character references summarised above in [53]-[65]. He has unrelated convictions for three driving offences. He attests to his longstanding efforts on Dromore Station and in the UDMR in undertaking river conservation efforts above in [49]-[50]. The affidavit of Ms Brademann expands on his important voluntary role in the management of the UMDR for conservation purposes since 2014.

99. The offences are not trivial. I have found they are of very low objective seriousness. The focus should be on the conduct of the offender and the circumstances of the offending: R v Mauger [2012] NSWCCA 51 at [19] citing Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54 at 577 (see above in [94]). While I would not describe the events leading up to the offences as ‘extenuating’ (making the fault less serious per Macquarie Dictionary, online ed, September 2023) I have found the failure leading to the offences of Mr Kimber not reading the new flow condition when received was accidental. The circumstances of no evidence of actual or potential environmental harm being adduced by the NRAR, no exceedance of any water entitlement and that no other person’s rights were affected by the offences are also relevant.

100. As first-time offenders I consider the defendants should have the benefit of orders under s 10(1)(a) of the CSP Act in these particular circumstances.

NRAR’s costs

101. The NRAR seeks costs pursuant to s 257B of the Criminal Procedure Act 1986 (NSW). The defendant accepts that some of the prosecutor’s costs ought to be paid, with exclusion of costs incurred in relation to the evidence of Mr McDermott and Dr Brookes. The NRAR accepted that submission and consequently I will make a limited order that the NRAR’s costs are paid by the defendants in relation to the offences.

Orders

102. The Court orders that:

1. The charge in proceeding 2022/346166 against the defendant Mr Kenneth Kimber be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction.

2. The charge in proceeding 2022/346177 against the defendant Mr Kenneth Kimber be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction.

3. The charge in proceedings 2022/346025 against the defendant Mr Luke Kimber be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction.

4. The charge in proceedings 2022/346036 against the defendant Mr Luke Kimber be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction.

5. The defendants Mr Kenneth Kimber and Mr Luke Kimber to pay the Natural Resources Access Regulator’s costs in proceedings 2022/346166, 2022/346177, 2022/346025 and 2022/346036 as agreed or assessed excluding any costs in relation to the evidence of Mr McDermott and Dr Brookes.

6. The exhibits to be returned.

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Decision last updated: 03 October 2023