Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited

[2017] NSWLEC 2

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2
Hearing dates:	24 August 2016
Date of orders:	12 January 2017
Decision date:	12 January 2017
Jurisdiction:	Class 5
Before:	Moore J
Decision:	See [160] and [161]
Catchwords:	ENVIRONMENT AND PLANNING – prosecutions for failure to disclose political donations – disclosure required when making applications for approval of or modifications to development – eleven charges – early guilty pleas – for most charges, failure to disclose multiple donations – failures due to inadequacy of internal systems and were not deliberate SENTENCING – characterisation of offences – approach to consideration of offences collectively – offences with multiple failures to declare being toward the upper end of the range – offences with single failure to declare being in the middle of the range – accumulation and totality where multiple offences – fines imposed SENTENCING - publication orders – availability to be ordered when legislation providing for them came into force after commission of offences but before charges laid – legislative prohibition on retrospective application of increased penalty – are publication orders a penalty? – held publication orders are to be characterised as a penalty and not able to be required in these circumstances CRIMINAL PROCEDURE – prosecutor’s application for moiety of fines imposed – purpose for ordering such payment being to compensate for investigation and other expenses – statutory power now available to make additional order for such purposes – appropriate to make an order in present circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986, ss 257B and 257G Election Funding Amendment (Political Donations and Expenditure) Bill 2008 Election Funding, Expenditure and Disclosures Act 1981 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment Act 2014 Environmental Planning and Assessment Regulation 2000 Fines Act 1996 Fines and Penalties Act 1901 Local Government and Planning Legislation Amendment (Political Donations) Bill 2008 Protection of the Environment Operations Act 1995 Water Management Act 2000
Cases Cited:	Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Director-General, Department of Planning and Infrastructure v Aston Coal 2 Pty Ltd (2013) 199 LGERA 176; [2013] NSWLEC 188 Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76 EPA v Barnes [2006] NSWCCA 246 Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 Hawkesbury City Council v Foster & Mushroom Composters Pty Ltd (1997) 97 LGERA 12 Hawkesbury City Council v Mushroom Composters Pty Ltd (No 3) (1996) 90 LGERA 395 Markarian v The Queen 228 CLR 357; [2005] HCA 25 Pearce v The Queen (1998) 194 CLR 610 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Olbrich 199 CLR 270; [1999] HCA 54 R v Thompson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309 Secretary, Department of Planning and Environment v Boggabri Coal [2014] NSWLEC 154 The Queen v Kilic [2016] HCA 48 Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14
Texts Cited:	Stroud's Judicial Dictionary 9th Edition
Category:	Principal judgment
Parties:	Secretary, Department of Planning and Environment (Prosecutor) AGL Energy Limited (152666 - 152675 of 2016) (Defendant) AGL Upstream Infrastructure Investments Pty Limited (153041 of 2016) (Defendant)
Representation:	Counsel: D Buchanan SC/and Ms A Mitchelmore, barrister (Prosecutor) T Howard SC (Defendant)   Solicitors: Department of Planning and Environment (Prosecutor) Herbert Smith Freehills (Defendant)
File Number(s):	152666, 152667, 152668, 152669, 152670, 152671, 152672, 152673, 152674, 152675 and 153041 of 2016
Publication restriction:	No

Contents

Judgment

Donation disclosure – the legislative history and statutory provisions

The legislative framework

Two preliminary observations

The offences

Introduction

The Statement of Agreed Facts

Time period covered by the donations

The factual basis for each of the offences charged

Overlapping

Knowledge and other disclosures

Summary of outcomes

The change in the company's policy

AGL’s guilty pleas

AGL’s evidence

The sentencing framework

AGL’s objective and subjective factors

Introduction

Objective factors

Circumstances of aggravation

AGL’s subjective factors

Contrition and remorse

The process for sentencing

Introduction

Deterrence

The broad approach to be taken to considering these charges

Classifying offences within a range

Consistency in sentencing

General

One other potentially relevant case

The appropriate starting sentences

Accumulation and totality

Attribution of penalty to individual offences

Costs

Publication orders

Introduction

Issues to be considered concerning publication notices

Is a publication notice a penalty?

A moiety of the fines to the Prosecutor?

Orders

In Matter No 152666 of 2016:

In Matter No 152667 of 2016:

In Matter No 152668 of 2016:

In Matter No 152669 of 2016:

In Matter No 152670 of 2016:

In Matter No 152671 of 2016:

In Matter No 152672 of 2016:

In Matter No 152673 of 2016:

In Matter No 152674 of 2016:

In Matter No 152675 of 2016:

In Matter No 153041 of 2016:

Appendix 1

Appendix 2

Judgment

Donation disclosure – the legislative history and statutory provisions

1. On 18 June 2008, the then Attorney General, the Hon. John Hatzistergos MLC, introduced into the NSW Parliament the Election Funding Amendment (Political Donations and Expenditure) Bill 2008 and its relevant cognate Bill, the Local Government and Planning Legislation Amendment (Political Donations) Bill 2008. With respect to the cognate Bill, the Attorney said, relevant to these prosecutions:

The bill will require public disclosure of all donations made by persons who have a financial interest in a relevant planning application at the time the relevant planning application is lodged. A person who makes a relevant planning application to the Minister for Planning will be required to disclose all donations of $1,000 or more made in the past two years by anyone with a financial interest in the application. In that context, a relevant planning application includes a request to the Minister or the director general to initiate the making of an environmental planning instrument, and a request for development on a particular site to be made a State-significant development.

Persons with a financial interest in an application include the applicant or the person on whose behalf the application is made, the owner of the site, or other persons who are associated with the applicant or owner, and are likely to make a financial gain if the relevant application is approved. Persons are taken to be associated if they carry on business together in connection with the application, or if they are related companies.

2. The Bills passed and the relevant amendment to Environmental Planning and Assessment Act 1979 (the EP&A Act) – the insertion of s 147 – became operative from 1 October 2008. By the passage of this legislation, the New South Wales Parliament made it a requirement that, when a corporation or an individual made a development application to a consent authority, a political donation disclosure needed to be made. Failure to make a relevant disclosure as required became an offence as a consequence of ss 125(1) and 147 of the EP&A Act.

The legislative framework

3. The EP&A Act deals with “Disclosure of political donations and gifts” in s 147. The object sought to be achieved by this provision is set out in s 147(1) in the following terms:

(1) The object of this section is to require the disclosure of relevant political donations or gifts when planning applications are made to minimise any perception of undue influence by:

(a) requiring public disclosure of the political donations or gifts at the time planning applications (or public submissions relating to them) are made, and

(b) providing the opportunity for appropriate decisions to be made about the persons who will determine or advise on the determination of the planning applications.

Political donations or gifts are not relevant to the determination of any such planning application, and the making of political donations or gifts does not provide grounds for challenging the determination of any such planning application.

4. A breach of the disclosure provisions is made an offence pursuant to s 125(1) of the EP&A Act by the terms of the first sentence of s 147(11), a sentence which reads:

A person is guilty of an offence under section 125 in connection with the obligations under this section only if the person fails to make a disclosure of a political donation or gift in accordance with this section that the person knows, or ought reasonably to know, was made and is required to be disclosed under this section.

5. The maximum penalties for such an offence are to be derived by reference to the Election Funding, Expenditure and Disclosures Act 1981 (the EFED Act). This arises as a consequence of the second sentence of s 147(11), a sentence which reads:

The maximum penalty for any such offence is the maximum penalty under Part 6 of the Election Funding and Disclosures Act 1981 for making a false statement in a declaration of disclosures lodged under that Part.

6. The Election Funding and Disclosures Act 1981 referred to in s 147(11) is now known as the EFED Act.

7. The maximum penalties set by s 96H(2) of the EFED Act, applicable as at the date of all these offences (although subsequently increased in 2014 – a matter of irrelevance in all these proceedings), are 200 penalty units ($22,000) or imprisonment for 12 months, or both.

Two preliminary observations

8. There are two observations to be made at the commencement of this sentencing process.

9. First, although there has been significant public controversy recently, in the federal political sphere, concerning several specific donations (and political donations more generally), such commentary and debate plays no role in my consideration of the appropriate penalties to be imposed for these offences and the issues which arise as to whether or not (and if so, in what publications and in what terms) publication orders might be made as an element of the general deterrence outcome of these proceedings.

10. Second it is to be observed that AGL Energy Limited has, in May 2016, adopted the company structure-wide policy, in its Code of Conduct, that corporate funds will no longer be used for political donations at any level.

The offences

Introduction

11. AGL Energy Limited (AGL Energy) and AGL Upstream Infrastructure investments Pty Limited (AGL Upstream) – a subsidiary of AGL Energy Limited (with both being referred to as AGL when discussed collectively) have pleaded guilty to eleven failures to make complete disclosure of political donations in breach of the statutory requirements. Ten of the offences were committed by AGL Energy and one by AGL Upstream.

The Statement of Agreed Facts

12. The Prosecutor and AGL have settled a lengthy and compendious Statement of Agreed Facts which was put in evidence. The material below dealing with each of the offences to which a guilty plea has been entered has been drawn from that document.

Time period covered by the donations

13. As can be seen from that which is set out below, the donations giving rise to these offences span a period of time from 7 January 2008 to 28 April 2014. The total amount of the donations that were made to the Australian Labor Party, the Liberal Party and the National Party during this period was $73,800.

The factual basis for each of the offences charged

14. The Statement of Agreed Facts sets out details of the sixteen donations that have founded the eleven offences with which AGL has been charged. It is unnecessary to reproduce the full extent of the detail concerning each offence as has been provided to me. Some of the donations were ones which had been made at the time of the relevant application concerning the particular proposed development had been lodged, whilst others were ones which were required to be notified within seven days of making the donation and were not so notified.

15. It is appropriate to provide information on two aspects of that which is set out in the Statement of Agreed Facts and then to provide a summary table bringing this information together in a fashion which shows how each charge brings together the project and the donation(s) founding the charge for that project.

16. First, I set out relevant short extracts from the Statement of Agreed Facts that show each project giving rise to a charge (in charge – not time – order). In each instance, “the Act” refers to the EP&A Act:

Camden Gas Mod Application: Stage 2B (charge 1)

238.   On or about 18 October 2011, AGL Energy made an application to the Minister for modification of a Major Project approval, DA 183-8-2004i-MOD2 – Camden Gas Project – Stage 2B – Mount Taurus and Paceway, under the former Part 3A of the Act.

239.   The Camden Gas Mod Application 2B relates to a modification to the previously approved Stage 2 Camden Gas Project for the construction and operation of an additional surface to in-seam production well (MP25) to be located in close proximity to existing gas well MP16.

Camden Gas Mod Application: Stage 2C (charge 2)

97.   On or about 10 November 2010, AGL Energy made an application to the Minister for modification of a Major Project approval, DA 9-1-2005-MOD 3 – Camden Gas Project – Stage 2C, under the former Part 3A the Act.

98.   The Camden Gas Mod Application 2C relates to a minor modification to a condition of approval for the Camden Gas Project relating to landscaping around wellheads.

Camden Gas Mod Application: Stage 2H (charge 3)

176.   On or about 9 February 2011, AGL Energy made an application to the Minister for modification of a Major Project approval, MP 06_0291 – MOD 3 – Camden Gas Project – Stage 2H – Spring Farm and Menangle Park under the former Part 3A of the Act.

177.   The Camden Gas Mod Application 2H relates to the construction and operation of an access road to well MP03, with the proposed route predominantly along existing roadways and tracks.

Camden Gas Mod Application: Stage 1B (charge 4)

206.   On or about 3 March 2011, AGL Energy lodged an application for modification of a Major Project approval, DA 246 -8-2002i – MOD 4 – Camden Gas Project – Stage 1B – Kay Park, under the former Part 3A of the Act.

207.   Camden Gas Mod Application 1B relates to a minor modification seeking to change approved well KP06 from a directional well to a surface to in-seam well.

Camden Gas Mod Application: Stage 2A (charge 5)

123.   On or about 23 November 2010, AGL Energy made an application to the Minister for modification of a Major Project approval, DA 282-6-2003i - Mod 12- Camden Gas Project – Stage 2A – Menangle and Rosalind Park, under the former Part 3A of the Act.

124.   The Camden Gas Mod Application 2A relates to a minor modification of conditions of the approval for Stage 2 of the Camden Gas Project relating to the monitoring and reporting of noise, air quality and waste at the Rosalind Park Gas Plant.

Camden Gas Mod Application: Stage 2D (charge 6)

149.   On or about 1 February 2011, AGL Energy made an application to the Minister for modification of a Major Project approval, DA 75-4-2005- MOD 3-Camden Gas Project- Stage 2D – Sugarloaf Farm under the former Part 3A of the Act.

150.   The Camden Gas Mod Application 2D relates to a minor modification of the approved gas gathering line between SL02 and MP22.

Newcastle Gas Storage Facility Project (charge 7)

45.   On or about 16 September 2010, AGL Energy made an application to the Minister for a Major Project, MP 10_0133 – Newcastle Gas Storage Facility Project, under the former Part 3A of the Act.

46.   The Newcastle Gas Storage Facility Application relates to a proposal to construct and operate a gas plant including a liquid natural gas storage tank, a natural gas pipeline connecting the gas plant site to the receiving station and a receiving station to link the proposed project into the NSW gas network via the existing Sydney to Newcastle gas pipeline, together with associated infrastructure and utilities connections.

Newcastle Gas Storage Facility Project Mod 1 (charge 8)

247.   On or about 9 September 2012, AGL Energy made an application to the Minister for a Major Project, 10_0133 Newcastle Gas Storage Facility – Mod 1, under the former Part 3A of the Act.

248.   The Newcastle Gas Storage Facility Mod 1 application relates to a modification to the Part 3A Approval for the Newcastle Gas Storage Facility to authorise the washing out of concrete mixers at the Tomago site with appropriate controls and for the waste water to be removed off site by pump-out trucks.

Broken Hill Solar Power Plant Project (charge 9)

72.   On or about 18 November 2010, AGL Energy made an application to the Minister for a Major Project, MP 10_0202 – Broken Hill Solar Power Plant, under the former Part 3A the Act.

73.   The Broken Hill Solar Power Plant Application relates to a proposal to construct and operate a 50 MW solar photovoltaic plant. The Broken Hill Solar Plant was constructed by AGL Energy as part of the Commonwealth Solar Flagships program.

Dalton Power Project (charge 10)

21.   On or about 25 March 2010, AGL Energy made an application to the Minister for a Major Project, MP 10_0035 – Dalton Power Project, under the former Part 3A of the Act.

22.   The Dalton Power Project Application relates to a proposal to construct and operate a gas turbine power station approximately 3 km north of the town of Dalton, NSW.

MP08_0154 – Mod 1 – Gloucester Gas Project (charge 11)

258.   On or about 19 November 2013, AGL Upstream made an application to the Minister to modify a Major Project approval, MP08_0154 – Mod 1 – Gloucester Gas Project under the former Part 3A of the Act.

259.   The Gloucester Gas Project Mod 1 application relates to a minor modification of the Part 3A Approval for the Gloucester Gas Project to authorise four minor pipeline corridor realignments and connection to the Newcastle Gas Storage Facility.

17. Second, I set out relevant extracts from the Statement of Agreed Facts that show each undisclosed donation (in time order):

On or about 7 January 2008, AGL Energy made a donation to the Australian Labor Party (NSW Branch), of $13,200 (including GST).    The January 2008 ALP Donation relates to an executive partner fee for the period 2007 to 2008.

On or about 27 June 2008, AGL Energy made a donation to the Australian Labor Party (NSW Branch), of $200. The 27 June 2008 ALP Donation relates to the purchase of a raffle ticket at an Australian Labor Party dinner.

On or about 23 February 2009, AGL Energy made a donation to the Liberal Party of Australia (NSW Division), of $11,000 (including GST). The 23 February 2009 Liberal Party Donation relates to a business sponsorship of the Liberal Party of Australia.

On or about 27 February 2009, AGL Energy made a donation to the Australian Labor Party (NSW Branch), of $50. The 27 February 2009 ALP Donation relates to the purchase of a ticket to attend an Australian Labor Party dinner.

On or about 6 April 2009, AGL Energy made a donation to the Australian Labor Party (NSW Branch), of $13,750 (including GST). The 6 April 2009 ALP Donation relates to an executive partner fee for the period 2008 to 2009.

On or about 1 March 2010, AGL Energy made a donation to the Liberal Party of Australia (NSW Division), of $11,000 (including GST). The 1 March 2010 Liberal Party Donation relates to a business sponsorship of the Liberal Party of Australia.

On or about 12 July 2010, AGL Energy made a donation to the Australian Labor Party (NSW Branch), of $13,750 (including GST). The 12 July 2010 ALP Donation relates to a business dialogue executive partner fee for the period July 2009 to June 2010.

On or about 30 August 2010, AGL Energy made a donation to the Liberal Party of Australia (NSW Division), of $1,000. The 30 August 2010 Liberal Party Donation relates to a Liberal Party lunch attended by Barry O’Farrell MP, held on 13 August 2010.

On or about 4 November 2010, AGL Energy made a donation to the Liberal Party of Australia (NSW Division), of $1,000. The 4 November 2010 Liberal Party Donation relates to a Liberal Party lunch attended by Barry O’Farrell MP, held on 5 November 2010.

On or about 20 December 2010, AGL Energy made a donation to the Liberal Party of Australia (NSW Division), of $5,000 (including GST). The 20 December 2010 Liberal Party Donation relates to the Liberal Party of Australia Business Forum (bronze package) held on 17 September 2010.

On or about 24 December 2010, AGL Energy made a donation to the Liberal Party of Australia (NSW Division), of $5,000. The 24 December 2010 Liberal Party donation relates to a Liberal Party dinner attended by Barry O’Farrell MP, held on 24 November 2010.

On or about 31 December 2010, AGL Energy made a donation to the National Party of Australia (NSW Division), of $750 (including GST). The 31 December 2010 National Party Donation relates to the attendance at a cooking class and dinner with Duncan Gay MLC, Adrian Piccoli MP and Gladys Berejiklian MP.

On or about 28 February 2011, AGL Energy made a donation to the National Party of Australia (NSW Division), of $300 (including GST). The 28 February 2011 National Party Donation relates to a State election launch dinner.

On or about 24 March 2014, AGL Energy made a donation to the National Party (NSW Division), of $250 (including GST). The 24 March 2014 National Party Donation relates to a cocktail reception held on 20 February 2014.

On or about 23 April 2014, AGL Energy made two donations to the Liberal Party of Australia, of $3,000 and $2,500 respectively. The donation of $3,000 relates to a State Campaign donation made to the Liberal Party of Australia. The donation of $2,500 (including GST) relates to a dinner with the Premier (for 8 attendees) held on 27 March 2014.

On or about 28 April 2014, AGL Energy made a further donation to the National Party (NSW Division), of $5,250 (including GST). The 28 April 2014 National Party Donation relates to a National Party dinner held on 2 April 2014.

18. To enable an understanding, in a short form, of the number and quantum of undisclosed donations involved with each charge and the development proposal to which they relate, set out below is a table that lists, for each charge, the number of donations and the total quantum of those donations relevant to that project; the project to which the charge relates; and the offence date/time period encompassed by the donations involved.

Charge	Number of donations/total $ not disclosed	Project description	Offence date(s)
1	1 donation/$1,000	DA 183-8-2004i – MOD 2 – Camden Gas Project – Stage 2B – Mount Taurus and Paceway	On or about 18.10.11
2	7 donations/$51,550	DA 9-1-2005 – MOD 3 – Camden Gas Project – Stage 2C – EMAI 1	On or about 10.11.10
3	7 donations/$26,800	MP 06_0291 – MOD 3 – Camden Gas Project – Stage 2H – Spring Farm & Menangle Park	Between about 9.2.11 and 7.3.11
4	8 donations/$37,800	DA 246-8-2002i – MOD 4 – Camden Gas Project – Stage 1B – Kay Park	On or about 3.3.11
5	7 donations/$51,550	DA 282-6-2003I – MOD 12 – Camden Gas Project – Stage 2A – Menangle and Rosalind Park	On or about 23.11.10
6	6 donations/$21,800	DA 75-4-2005 – MOD 3 – Camden Gas Project – Stage 2D – Sugarloaf Farm	Between about 1.2.11 and 7.3.11
7	6 donations/$13,050	MP 10_0133 – Newcastle Gas Storage Project	Between about 6.9.10 and 7.3.11
8	1 donation/$5,000	MP 10_0133 – MOD1 – Newcastle Gas Storage Project	On or about 9.9.12
9	6 donations/$21,550	MP 10_0202 – Broken Hill Solar Power Project	Between about 18.11.10 and 7.3.11
10	5 donations/$2,300	MP 10_0035 – Dalton Power Project	Between about 25.3.10 and 7.3.11
11	3 donations/$11,000	MP 08_0154 – MOD 1 – Gloucester Gas Project	Between about 30.4.14 and 5.5.14

Overlapping

19. During the course of the proceedings, I was provided with a visual aid which showed, in coloured table form, greater detail concerning each of the charges and each of the donations (with the donations being marked, in different colours – red for those which should have been disclosed with the application and blue for those which should have been disclosed for the particular project within seven days of the making of the donation). A copy of the table that sets out that detail is attached as Appendix 1 to this decision.

20. Appendix 1 shows the overlapping nature, where this has occurred, of the various non-disclosures and the various projects. As an example, a $1,000 donation to the Liberal Party on 30 August 2010 can be seen to have been an element in eight of the charges and the sole basis for a further charge.

Knowledge and other disclosures

21. The Statement of Agreed Facts sets out the relevant internal AGL processes at [282] to [284] as follows:

282. AGL Energy and AGL Upstream were generally aware that there was an obligation to disclose certain political donations in connection with certain planning applications under section 147 of the Act.

283.   From about late 2008, AGL Energy had a system in place to facilitate the reporting of political donations. The system operated as follows:

a.   AGL Energy’s Government Affairs team maintained a register of political donations made by AGL Energy, which was used by AGL Energy’s Government Affairs team to disclose political donations to the Department, the Australian Electoral Commission and the NSW Electoral Commission. The register was completed using information obtained internally on political donations and was checked from time to time with the relevant political party to avoid any discrepancies.

b.   When AGL Upstream proposed to lodge a planning application, it would contact AGL Energy’s Government Affairs team and request that they prepare a Disclosure Statement. The Government Affairs team would then prepare and sign off on a Disclosure Statement based on the register.

284.   From late 2008, AGL Upstream had access to the same system, and made use of the same system, as AGL Energy had in place with respect to its reporting political donations.

22. The Statement of Agreed Facts also had attached to it a summary (as Annexure B – also reproduced as Appendix 2 to this judgment) of the extent to which each donation was disclosed either for other planning applications or as required by other mandating legislative provisions.

Summary of outcomes

23. As has been acknowledged by AGL, each of the offences to which a plea of guilty has been entered has arisen as a consequence of a series of systemic failures within AGL's administrative processes. Although not to be regarded as a series of related crimes in a fashion giving rise to a factor of aggravation, consideration of the multiple offences does engage the necessity to consider issues of totality and accumulation in sentencing.

24. I have concluded, for the reasons set out, that the offences can be regarded as falling in two categories, one of greater seriousness than the other. The more serious category of offence comprises those offences where there has been a failure to disclose multiple donations whilst the lesser category involves, in each of two instances, a single failure to disclose. The former category of offence is to be regarded as being towards the upper end of the range of possible offences of this kind whilst the two offences involving a single failure to disclose should be regarded as being a little above the middle of the range.

25. As a result, I have concluded that each of the offences involving multiple failures to disclose warrants a starting penalty of $18,000 whilst those involving a single failure to disclose warrant a starting penalty of $12,000.

26. However, to reflect the utilitarian value of the early pleas of guilty entered by AGL to all of these offences and to have regard to the necessity for only partial accumulation of the penalties, I am satisfied that the appropriate total penalty for AGL should be reduced from $186,000 to $124,000, a total discount of one third (including the maximum 25% discount for the early guilty pleas).

27. As a consequence, I am satisfied that the appropriate way to reflect the discount I have determined to be appropriate is to reduce each penalty by the one third discount without endeavouring to rank the seriousness of each of the individual offences either, within the multi-failure category, by the number of failures to disclose or, for all offences, by having regard to the temporal order in which they were committed.

28. Thus, the overall result is to reduce each of the $18,000 fines to $12,000 and each of the $12,000 fines to $8,000.

29. I have also dealt with two other issues requiring determination in these proceedings. They are the questions of whether I should also make publication orders with respect to each of the offences and, second, whether I should order that half of each fine should be paid to the Prosecutor as is permitted by s 122 of the Fines Act 1996 (the Fines Act).

30. With respect to publication orders, I have concluded (albeit with a deal of reluctance under the circumstances, as the “disinfecting effect of sunlight” which would arise from publication orders would be a powerful general deterrent) that making such orders would constitute imposing an additional penalty. As a consequence, making such orders would constitute a breach of s 19(1) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) and is, as a consequence, impermissible.

31. For the reasons I have also set out, I am satisfied that, in the circumstances of these proceedings, I should order that half of each fine should be paid to the Prosecutor. However, for the reasons I have set out, such an outcome is not to be seen as an automatic response to such an application. In this instance, the Prosecutor has elected not to make an application pursuant to the now available statutory provisions for reimbursement of investigation expenses incurred leading up to the prosecutions (investigation expenses that do not fall within the scope of the costs orders to be made pursuant to s 257B of the Criminal Procedure Act 1986 (the Criminal Procedure Act)). Given that such a specific power now exists for prosecutions for breaches of the EP&A Act, justification for such a penalty disposition order in favour of a prosecutor may well require consideration of a differing nature in the circumstances of any particular case in the future.

The change in the company's policy

32. As can be seen from the pattern of donations set out, AGL has been an active and bipartisan supporter of the political process in New South Wales. That is no longer the position. Following the laying of these charges, AGL undertook a review of its corporate policy concerning the making of political donations. That internal review led to a series of decisions by the AGL Board revising AGL’s Code of Conduct, culminating in the position (effective from May 2016), that AGL and associated entities would, for the future, adopt the position that they would not make donations to political parties, either by financial contribution direct to a party or by paying for any officer or employee of the company to attend a political function (such attendances constituting “gifts” and therefore “political donations” for the purposes of the EFED Act (s 85 of the EFED Act)).

33. As can be seen from the material earlier set out, some of the donations that were made were simply monetary subventions made direct to a party, whilst others were payments made to permit an officer or employee of AGL to attend a political function.

34. This change in policy by AGL is a matter for consideration as part of the sentencing process as it is clearly relevant to the question of whether or not there is any necessity for a requirement for specific deterrence to ensure that AGL commits no further breaches of this nature in the future. This is discussed later in my consideration of the factors (“specific deterrence” and “contrition and remorse”) requiring assessment as a consequence of the operation of relevant provisions of the Sentencing Procedure Act.

AGL’s guilty pleas

35. The Prosecutor accepts (as do I) that these guilty pleas were entered at the earliest opportunity. This is a factor to be taken into account in the evaluative sentencing process as later discussed and an appropriate discount (for the reasons later explained) allowed for these guilty pleas in the sentencing calculation.

36. At this point, it is appropriate for me to note that I am satisfied, on the basis of that which is set out in the Statement of Agreed Facts, that AGL has appropriately entered guilty pleas to each of these offences and that, as a consequence, convictions should be recorded in each instance.

AGL’s evidence

37. AGL relied on three affidavits that were read in the proceedings. These were from:

• Ms Jennifer Coutts (dated 6 May 2016). At the date of her affidavit, Ms Coutts held the position of Executive General Manager, Stakeholder Relations with AGL Energy; and

• Mr John Fitzgerald (two affidavits – dated 21 July and 15 August 2016). Mr Fitzgerald is AGL Energy’s General Counsel and Company Secretary and is a director of AGL Upstream.

The sentencing framework

The Sentencing Procedure Act

38. The Sentencing Procedure Act sets out, in s 3A, the purposes for which a sentence may be imposed. The provision is in the following terms:

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.

39. The Sentencing Procedure Act also sets out, in s 21A, various aggravating, mitigating and other factors potentially required to be taken into account in a sentencing process. To the extent that the matters set out in these two provisions are relevant to these proceedings, I have had regard to them in the following discussion.

Plath v Rawson

40. In Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178, Preston CJ set out at [48] a list of matters potentially to be taken into account when assessing the objective gravity of an environmental offence. This list was not expressed as exhaustive. The matters listed by his Honour were:

1. the nature of the offence;

2. the maximum penalties for the offence;

3. the harm caused to the environment by commission of the offence;

4. the state of mind of the offender in committing the offence;

5. the offender's reasons for committing the offence;

6. the foreseeable risk of harm to the environment by commission of the offence;

7. the practical measures to avoid harm to the environment; and

8. the offender's control over the causes of harm to the environment.

41. In Plath v Rawson, Preston CJ also set out (at [140]) the favourable factors personal to the offender able to be taken into account within the limits set by reference to the objective gravity of the offence. This list is also not to be seen as exhaustive. The matters of this nature listed by his Honour were:

1. lack of prior criminality;

2. prior good character;

3. plea of guilty to the offences;

4. contrition and remorse; and

5. assistance to authorities.

42. To the extent that these are relevant by analogy (and act to expand upon or supplement the relevant matters contained in the Sentencing Procedure Act), I have had regard to them in the sentencing process I am here undertaking.

43. I now turn to address the relevant factors concerning AGL.

AGL’s objective and subjective factors

Introduction

44. As noted above, the Sentencing Procedure Act (s 21A(2) and (3)) requires that I consider any aggravating and mitigating factors concerning AGL that are to be taken into account in determining the appropriate sentences for AGL for these eleven offences.

45. For the reason set out below, there is no aggravating factor arising from consideration of the matters set out in s 21A(2) with respect to AGL.

46. The facts giving rise to the offences have been set out, in summary, at the commencement of this judgment, as has the statutory basis for the charges against AGL. It is against those facts and the offences themselves that the objective factors are to be considered. The subjective factors are those that are peculiar to AGL in this context.

Objective factors

The maximum penalty

47. The maximum penalty is significant in determining the objective seriousness of the offence: Plath v Rawson at [57]. The maximum penalty also demonstrates the seriousness with which the offence charged is viewed: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

48. The size of the penalty also "indicates the gravity of the offence as perceived by the community" (Camilleri's Stock Feeds also at 698).

49. The only other prosecution for breaches of this nature was dealt with by Craig J in Director-General, Department of Planning and Infrastructure v Aston Coal 2 Pty Ltd (2013) 199 LGERA 176; [2013] NSWLEC 188. His Honour considered, at [38] to [40], what should be made of the maximum penalty regime then applicable (as is also here applicable – although subsequently increased, that is not relevant to these proceedings). His Honour said:

As I have earlier stated, the maximum penalty provided by s 147(11) of the EPA Act for failure to comply with the provisions of that section is a fine of $22,000 or imprisonment for 12 months or both. That maximum penalty reflects the public expression by Parliament and by extension, the community, of the seriousness of the offence charged (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 per Kirby P, Campbell and James JJ agreeing, at 698).

The imposition of a maximum fine of $22,000 for failure to make a disclosure required by s 147 does not demonstrate that such an offence is minor. The defendant did not submit to the contrary. Nonetheless, the defendant did seek to contrast that maximum with the maximum fine imposed for most offences against s 125 of the EPA Act, being a penalty of $1.1M (s 126(1)). It submits, correctly in my view, that the latter penalty cannot be used as a measure to justify the imposition of a penalty in the present case at or close to the maximum fine of $22,000.

The penalty imposed in a given case must be commensurate with that proportion of the maximum penalty provided for the offence that is reflective of, among other matters, the objective seriousness of the offence as charged. In identifying that objective seriousness, I do not overlook the fact that while a much higher maximum fine is available under s 126(1) than that provided for by s 147(11), the maximum penalty for the present offences includes both the imposition of a fine and the imposition of a custodial sentence. The imposition of such a sentence is not available under s 126(1). This suggests that the seriousness with which the Parliament viewed the failure to comply with s 147 of the EPA Act should not be viewed so narrowly as if a fine only of $22,000 was the measure against which that seriousness should be judged.

50. The view expressed by Craig J in [40] above concerning the gravity with which any breach of s 147 is to be regarded is one I adopt for the reasons his Honour gave in the extract from Aston Coal reproduced above.

Circumstances of aggravation

Introduction

51. The Prosecutor has not submitted that the conduct of AGL or of any of its employees was reckless or careless or negligent so as to be an aggravating factor (R v Olbrich 199 CLR 270; [1999] HCA 54 at [27]). However, I am required to consider the relevant statutory provisions.

A series of criminal acts?

52. I turn, first, to consider s 21A(2)(m) of the Sentencing Procedure Act, a provision in the following terms:

(m) the offence involved multiple victims or a series of criminal acts,

53. Although, as earlier set out, there were a series of omissions by AGL giving rise to these offences, there is no suggestion that these arose other than as a consequence of systemic failure and certainly not in any fashion warranting being regarded as aggravating in the relevant statutory sense. As a consequence, this provision has no role to play in these proceedings.

Financial gain

54. The second relevant factor to be dealt with is that in s 21A(2)(o) of the Sentencing Procedure Act, a provision in the following terms:

(o) the offence was committed for financial gain,

55. There is no evidence to suggest that these offences were committed for financial gain – merely that they followed from AGL’s systemic failures acknowledged by the company. As a consequence, this provision also has no role to play in these proceedings.

AGL’s subjective factors

No prior offences

56. The first relevant factor is that in s 21A(3)(e) of the Sentencing Procedure Act necessitating enquiry to whether AGL has "any record (or any significant record) of previous convictions".

57. The Prosecutor accepts (Statement of Agreed Facts at (306)) that AGL does not have any prior convictions for any offence against the legislation giving rise to these charges.

AGL as a corporate citizen

58. The second relevant factor is that in s 21A(3)(f) of the Sentencing Procedure Act as to whether the company is "of good character".

59. In her affidavit, Ms Coutts set out, at (46), AGL's community contributions (in cash, employee volunteering and in-kind contributions) for financial year 2014/2015 as being valued at over $2.7 million. At (47) to (49), Ms Coutts amplified on the nature of these contributions by including a range of specific examples (examples that are unnecessary to be set out, but which, in their range, demonstrate positive participation in the life of the communities in which AGL operates).

60. At (50), Ms Coutts set out AGL's commitment of $6.5 million to an Affordability Initiative aimed at assisting vulnerable and disadvantaged energy customers.

61. The further material in the folder exhibited to her affidavit provided detailed information concerning the range of community and social initiatives noted above.

62. As consequence, I am satisfied that AGL should be regarded as a good corporate citizen and I have taken that fact into account in the sentencing consideration later to be undertaken.

Likelihood of reoffending – specific deterrence

63. The third relevant factor is that in s 21A(3)(g) of the Sentencing Procedure Act as to whether AGL "is unlikely to re-offend". This is also relevant, for the future, to prevention and, thus, avoidance of the potential for future incidents of this type.

64. As earlier noted, AGL relied on three affidavits that were read in the proceedings. In Ms Coutts’ affidavit, she set out at (36) to (41) the evolutionary process between August 2015 and May 2016 of the revisions to AGL's political donations policy with the result that, from 2 May 2016, the AGL Code of Conduct’s policy is that AGL “will not make donations to any political party or to any individual in, or seeking to obtain, public office”.

65. Ms Coutts’ affidavit also notes, at (42) that:

New employees who join AGL are required to undertake training on AGL Energy’s Code of Conduct. Refresher training on the Code of Conduct is required to be undertaken by employees annually. In addition, the August 2015 policy is included in the training package for new employees.

66. The Prosecutor’s written submissions on this policy in the context of the extent to which specific deterrence for AGL might be appropriate, said (at (41) and (42) – citations omitted):

The prosecutor notes that the defendants presently have in place a policy which prohibits the making of any political donation by or on behalf of AGL Energy and its related bodies corporate. However, in seeking to implement that policy, the amendments originally made to the Code of Conduct stated that AGL would not make any donations to any political party or to any individual in, or seeking to obtain, public office and, at the same time, would “adopt an even-handed approach to all mainstream political parties when paying to attend political functions”. As AGL picked up in its policy:

A “political donation” is defined in section 85(1) of the EFED Act to include, relevantly, “a gift made to or for the benefit of a party”; and

A “gift” is taken to include (section 85(2)):

An amount paid by a person as a contribution, entry fee or other payment to entitle that or any other person to participate in or otherwise obtain any benefit from a fundraising venture or function (being an amount that forms part of the proceeds of the venture or function) …

Although the issue has since been rectified, the discrepancy between the policy and the terms of the Code of Conduct as originally amended reflects a misunderstanding of the extent of the defendant's obligations under section 147 of the EPA Act notwithstanding the breaches that led to amendment of company policy. Noting that company policies may be changed in future, this concern may give more scope for the application of specific deterrence to apply, although the prosecutor accepts that, in light of the matters outlined above, specific deterrence does not have a significant role in this case.

67. Although the Prosecutor submitted that there is some scope for specific deterrence to be called into play in these prosecutions, I am not satisfied that this is the case. The evolutionary process that has led to the final (now) absolute prohibition in AGL's policy for AGL Energy and its subsidiaries of making any form of political contribution seems to me to be one unlikely to be resiled from, particularly in circumstances where AGL has been “burnt” by the necessity to plead guilty to these breaches with the consequent result of having recorded the convictions that necessarily follow against AGL Energy and AGL Upstream.

68. I am therefore satisfied that AGL is not likely to reoffend in the fashion giving rise to these charges and thus no element of specific deterrence is required to be incorporated in any of the sentences.

Contrition and remorse

69. The fourth relevant factor is that in s 21A(3)(i) of the Sentencing Procedure Act as to whether AGL "has shown remorse for the offence".

70. In his affidavit of 21 July, Mr Fitzgerald deposed, under the heading “Remorse and contrition”:

The AGL Entities take their compliance obligations very seriously. The AGL Entities accept that as persons who made ‘relevant planning applications’ for the purposes of section 147 of the EP&A Act, they had specific obligations to disclose reportable political donations made within the relevant period.

As a result of the investigation, the AGL Entities have recognised that there were a number of deficiencies in their systems with respect to the disclosure of reportable political donations for the purposes of section 147 of the EP&A Act. In particular, they accept that they failed to disclose all reportable political donations as required by section 147 of the EP&A Act.

The AGL Entities express their remorse and contrition in relation to these failures.

The AGL Entities have taken a number of actions to ensure that such failures do not occur again. In particular, AGL Energy has put in place a policy which prohibits the making of any political donation by or on behalf of AGL Energy and its related bodies corporate.

71. In addition, in his second affidavit (of 15 August 2016), Mr Fitzgerald referred to the minutes of a meeting of the board of AGL Energy held on 9 August 2016 which dealt, amongst other things, with Mr Fitzgerald's expression of remorse and contrition, in his affidavit of 21 July, on behalf of AGL. An extract from the minutes of that meeting of AGL's directors was annexed to Mr Fitzgerald's second affidavit. The Board minutes record that:

The Board confirmed that Mr Fitzgerald, as General Counsel and Company Secretary of the Company and director of AGL Upstream, has always had authority to express remorse and contrition on behalf of both companies.

72. I am satisfied that Mr Fitzgerald's expression of remorse and contrition on behalf of both Defendants has been appropriately and sufficiently expressed (and is to be regarded as reinforced by both the early pleas of guilty and the substantive changes to AGL’s Code of Conduct – earlier discussed – resulting in the now banning of any future political donations).

73. As a consequence, I accept that the company has accepted responsibility for and regrets the occurrence of the various omissions that have given rise to these prosecutions – with this constituting an effective demonstration of the company's contrition and remorse.

AGL's pleas of guilty

74. Fifth, the Sentencing Procedure Act (s 21A(3)(k)) also requires that a guilty plea be taken into account "as provided by section 22". The terms of s 22 of the Sentencing Procedure Act are set out below:

22 Guilty plea to be taken into account

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

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

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

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

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

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

75. R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 settled the position that the discretionary discount on the sentence for an early guilty plea would ordinarily be within the range of 10% to 25%.

76. AGL's guilty pleas have had utility to the system of justice. Guilty pleas to all offences charged were entered by AGL on the earliest available occasion, thus enabling the matters to be set down for a sentencing hearing without requiring further preliminary attendance.

77. When this is coupled with the efficient conduct of the hearing (the sentencing hearing was completed in a little over half a day without the need for oral evidence or requiring utilisation of the second allocated sitting day), these two factors demonstrate the significant benefit to the system of justice of the guilty pleas in these proceedings. As a consequence, I am satisfied that AGL is entitled to the maximum discount of 25%.

Assistance to the Prosecutor

78. Finally, ss 21A(3)(m) and 23 in combination of the Sentencing Procedure Act requires that I have regard to require that I have regard to “assistance by the offender to law enforcement authorities”.

79. I have earlier noted that AGL relied on two affidavits from Mr Fitzgerald, its General Counsel and Company Secretary. In the first of them, dated 21 July 2016, Mr Fitzgerald dealt with AGL's cooperation with the Prosecutor, at (11), in the following terms:

The AGL entities have cooperated with the prosecutor at all times by:

voluntarily providing the Department of Planning and Environment with a copy of two reports prepared by Deloitte, together with legal advice received by solicitors, Herbert Smith Freehills;

providing the Department with a detailed letter outlining a number of factual errors with the Summonses and the Secretary’s evidence;

providing comprehensive responses to two statutory notices to provide information and/or records dated 5 December 2014 (varied on 30 January 2015) and 7 April 2015 (varied on 5 May 2015) respectively; and

working with the prosecutor to prepare an agreed statement of facts.

80. The Prosecutor’s written submissions on this point, at (38)(c), were in the following terms:

The defendants afforded assistance to the prosecutor in the investigation of the offence and conduct of the proceedings (s 21A(3)(m) and s 23). To the extent that, in her affidavit, Ms Coutts relies on the responses provided to the statutory notices (affidavit at [52(c)]), the prosecutor notes that the notices were compulsory but accepts that the defendants did not seek to cavil with or otherwise frustrate the response process.

81. However, despite the Prosecutor’s qualified concession, I am satisfied that it is appropriate, overall, to conclude that AGL has cooperated appropriately with the Prosecutor.

The process for sentencing

Introduction

82. It is now well-established that the penalty to be imposed is one to be determined by undertaking an instinctive synthesis of all the relevant objective and subjective circumstances of the offence and of the offender (Markarian v The Queen 228 CLR 357; [2005] HCA 25). It is a process that necessitates my consideration of the aggregation of the entirety of these factors and their application to this offender.

Deterrence

83. The second of the objectives in s 3A of the Sentencing Procedure Act is "to prevent crime by deterring the offender and other persons from committing similar offences".

84. For the reasons earlier set out, I am satisfied that AGL is not likely to reoffend. As a consequence, there is no necessity for any measure of penalty to effect specific deterrence for AGL in these proceedings.

85. However, an appropriate penalty reflecting the nature of the offence committed does have utility in providing a general deterrent effect to others about the desirability of appropriate recording and reporting arrangements being in place in a failsafe fashion. This is particularly so in light of the necessity to ensure protection of the integrity of the planning system and the serious with which such offences should be regarded (see [1] and [3] and the extract from Director General v Aston Coal 2 at [49] above).

The broad approach to be taken to considering these charges

86. Before embarking on further analysis, it is appropriate to address the question of what should be the broad structure of the approach to be taken to these charges. This arises, particularly, as a consequence of the approach advocated in AGL's written submissions. This proposed, in broad, that regard should be had to the nature of the projects giving rise to each charge and, in some instances, the quantum of the donation or donations, figuring in that charge.

87. For example, it was submitted that the majority of the Camden Gas Project applications merely involved minor modifications to an otherwise substantial project and that, as a consequence, the charges arising from disclosure failures for such applications should be regarded as being at the low end of the range of objective seriousness. Similarly, it was suggested that smaller donations (such as payments to attend political functions) were of lesser importance. This, it was suggested, also gave rise to a factor to be considered where a comparatively modest donation or payment requiring disclosure would also trigger the accumulation process for aggregated disclosure for that project of back-capture of earlier donations.

88. I consider that this approach is to be rejected. The basis for doing so, in my assessment, is demonstrated starkly by Appendix 1. Appendix 1 shows, in a visually comprehensive fashion, the nature of the pattern involved in these non-disclosures and, as earlier discussed, highlights the inadequacy of the broad internal processes undertaken by AGL to ensure that donations were disclosed. Although, as earlier briefly discussed, the series of offences should not be regarded as a factor of aggravation, nonetheless, they are not to be disaggregated in the fashion proposed in order to minimise the nature of the systemic omission that they disclosed.

89. The proper approach, in my assessment, although separate charges have been laid with respect to each project associated with non-disclosures, is to regard them not as matters to be considered in some more isolated fashion but to treat them all as part of an overall pattern (but not in the sense of requiring additional penalty for aggravation). Doing so, in this fashion, permits proper regard to be had, as later discussed, to issues of accumulation and totality in the sentence-deriving synthesis required to be undertaken.

90. In addition, the submissions on behalf of AGL also proposed that the fact that disclosures of donations giving rise to the various charges may have been made to other state or federal bodies for which such disclosure was mandated by other statutory provisions was also a factor to be taken into account in mitigating the seriousness of the failures giving rise to these 11 charges. I am unable to accept that proposition. There are two reasons for reaching this conclusion.

91. The first is that the disclosure provisions giving rise to these charges were enacted, for the reasons earlier set out, as a transparency process designed to enhance and protect public confidence in the integrity of the development approval process both for projects (or modifications to approved projects) dealt with at a state level with protective, integrity-based reasons for the provisions also applying at a local council level. Other disclosure requirements, whilst undoubtedly introduced for integrity reasons, are in an entirely different statutory framework and do not bear on how matters of disclosure should be approached under these statutory provisions.

92. Second, as discussed above, Appendix 1 discloses the nature of the pattern of systemic failure involved, a pattern warranting the approach discussed above in this section.

93. Finally, AGL also submitted that it was appropriate to have regard to the fact that none of the decisions providing the foundation for any of the charges was, in fact, made by the Minister but were made either by the Planning Assessment Commission (the PAC) or by senior officers of the Department, with such decisions being made under delegation from the Minister and independent of the holder of that office at the relevant time.

94. This, too, seems to me to be an irrelevance in the context where the purpose of the legislative amendments has an ethical foundation designed to protect and enhance public views of the integrity of the planning system in circumstances where there has been an erosion of public confidence over time. Although approval decisions were made under delegation, they were nonetheless made in the name of the Minister, self-evidently the holder of a political office – an office in government derived from membership of a political party (it matters not, which party or what government) where the beneficiaries of the undisclosed donations are the parties participating in that political system.

95. Appendix 1, again, provides a stark visual reinforcement of the extent and pattern of the failures giving rise to these charges, a matter appropriately to be comprehended in the accumulation and totality discussion later to be had, but not to be lessened in its seriousness by the fact that decisions were made in the Minister's name rather than by the Minister personally.

Classifying offences within a range

96. Camilleri's Stock Feeds (at [698]) also confirmed that:

"The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum".

97. The upper limit for the range within which the sentence falls must not exceed that which is proportionate to the gravity of the offence in light of its objective circumstances (Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14). The lower limit is fixed to permit allowance for subjective factors as those relevant to the offender cannot produce a sentence that fails to reflect the offence's objective seriousness.

97. Consistent with this, it is necessary to categorise the objective seriousness of the behaviour constituting the offences, in these proceedings, as falling somewhere within a range between the "least serious case" and the "worst category" of such conduct (The Queen v Kilic [2016] HCA 48 at [19]).

98. Placement within a range, however, is not a matter of mathematical precision, merely a tool to assist with the instinctive synthesis process needing to be undertaken to assess the appropriate penalty for the relevant defendant.

99. I have explained why it is important, having regard to the maximum penalty for these offences, to consider where, between the maximum penalty and the lowest penalty, these offences might fit. In this regard, the case determined by Craig J in Director-General v Aston Coal 2, is of little assistance. That is because what is here disclosed for these offences constitutes, over a long period of time, a significant, albeit inadvertent, failure of the internal systems of AGL Energy to track donations; relate them to relevant project applications that the company proposed to make or had already made where those projects mandated the disclosure of one or more donations now known not to have been declared.

100. On the other hand, although the maximum penalty is a comparatively modest one for each offence ($22,000), as Craig J observed, the availability of a term of imprisonment as a penalty for an offending individual can be taken as an indication by the legislature of the seriousness with which these offences are to be regarded. In addition, as can be seen from Appendix 1, there is, for the most part, a pattern of multiple failures of the internal AGL systems causing some donations, including ones for not insignificant sums, failing to be disclosed for multiple projects.

101. Although each of the offences stand to be considered individually, I am satisfied that each of the offences (other than those involved in Charges 1 and 8 which only involve a single nondisclosure) should be regarded as being toward the upper end of the range of seriousness for such offences. For those offences where there was a single non-disclosure, whatever the value of the donation not disclosed being irrelevant on this point in my assessment, that offence should be regarded as being just above the middle of the range (and would, had it been a standalone instance of offending conduct without the slipstreaming effect of the overall pattern, have been below the middle of the range). This is because it is the extent of the non-disclosure(s) in each instance that is relevant rather than the nature of the application or project with respect to which the non-disclosure(s) took place.

102. None of the offences are in the “worst category” and thus none are “so grave as to warrant the maximum prescribed penalty” (Kilic at [20]).

Consistency in sentencing

General

104. Although each such prosecution needs to be considered on the facts and circumstances of the particular event, it is also relevant, in sentencing, to ensure that the sentence given in a particular prosecution is not inconsistent with sentences given in other prosecutions for events involving the same or related events that might - to a greater or lesser extent - potentially be regarded as providing guidance for sentencing purposes.

One other potentially relevant case

105. I have, as earlier noted, had regard to Director General v Aston Coal 2. This is the only other prosecution from which it is suggested I might garner some guidance on how I might characterise the seriousness of AGL's offending and the level of penalty that might be appropriate to attach to it. However, it is of little assistance as it involved isolated failures to disclose (and failure of a different characteristic) when compared to the systemic failures here involved.

The appropriate starting sentences

106. Determining the appropriate sentences involves me undertaking an instinctive synthesis of all the objective and subjective factors to determine an appropriate description of the seriousness of the company's conduct and then to consider where this fits, within the range up to the maximum penalty set by the Parliament, to arrive at the appropriate penalty for each of the offences in these circumstances and then, as the following step, to determine the extent to which the penalty so derived should be discounted for the early guilty plea.

107. I have earlier described how I consider that the various offences should be characterised. In that characterisation, I have explained why I am satisfied that these offences can be regarded as falling into two distinct categories. Undertaking the process of instinctive synthesis of the objective matters relating to each offence and of AGL's subjective factors, I have concluded that each of the offences in the first group (multiple non-disclosures) should be regarded as falling toward the upper end of the range and thus should have a starting penalty of a fine of $18,000 whilst, for the lessor category (a single non-disclosure), a penalty of $12,000 would be appropriate.

108. A strict formulaic application of these penalties would derive in overall total of all penalties of $186,000. However, there are two leavening factors which need to be addressed before reaching a final determination on what penalties should be imposed for each of the offences. The first of these is the consideration of totality and accumulation, whilst the second is the application of the 25% discount for the utilitarian effect of AGL's early guilty plea to each of the offences. I note that, in this process, although AGL Upstream is a separate legal entity, there is no suggestion that there should be any special separating dispensation for that company in this overall sentencing process.

Accumulation and totality

109. I have earlier explained why, although each of the 11 charged offences are separate and have differing disclosure patterns (as shown in Appendix 1), they all arise from the same broad systemic failure within AGL's administrative processes. As a consequence, it is appropriate to apply an adjustment to the overall original potential accumulation of penalties derived through the instinctive synthesis process to ensure that there is not an inappropriate accumulation of penalties, whilst still ensuring that the total outcome of my penalty assessment process can appropriately reflect the totality of that which is to be imposed (Pearce v The Queen (1998) 194 CLR 610).

110. For this reason, before turning to apportioning of a derived total between the various offences, it is also appropriate to apply, for the reasons earlier set out, a discount of one-third (33.3%) – including the maximum 25% discount reflective of AGL's entry of guilty pleas to all offences at the earliest opportunity.

111. In this context, I am satisfied that an overall total penalty of $124,000 to be distributed amongst the 11 offences would be appropriate as an accumulatively discounted outcome.

Attribution of penalty to individual offences

112. It is necessary, having determined that the total penalty actually to be imposed on AGL is to be $124,000, that this penalty be attributed across the 11 offences that have been charged. In doing so, I am mindful that I have identified the various offences as falling within two categories and, in making an attribution of penalty, it is appropriate to have regard to this characterisation.

113. In undertaking this process, I have concluded that the appropriate approach is to impose a fine of $12,000 for each offence within the more serious category (multiple non-disclosures) and impose a fine for each of the two lesser offences (single non-disclosures) of $8,000.

Costs

114. The Prosecutor has applied, pursuant to s 257B of the Criminal Procedure Act, for an order that AGL pay the Prosecutor's costs of these proceedings. There is no reason why that order should not be made and, therefore, it is included as an order made across all proceedings.

115. I should observe that, in fixing the various penalties that I have earlier described, I am mindful of the fact that an order for a convicted party to pay the Prosecutor's costs, particularly when it might be considered that those costs were likely to be substantial (as is here reasonable to assume and is conceded by the Prosecutor – written submissions at (56)) that is a matter that can be taken into account in fixing penalties (EPA v Barnes [2006] NSWCCA 246). However, in these proceedings, the combination of the comparatively modest maximum penalty available, coupled with the seriousness of the offences (for the reasons enunciated by Craig J in Director-General v Aston Coal 2), I have concluded that it would be inappropriate to make any further adjustment as a consequence of the costs order to be made.

Publication orders

Introduction

116. From 15 July 2015, an amendment to the EP&A Act came into effect. This amendment inserted s 126(2A) – a new provision that had the effect of expanding the range of orders able to be made as a consequence of a conviction for a breach of the Act. The new provision is in the following terms:

126 Additional provisions relating to penalties

(1), (2) (Repealed)

(2A) Part 8.3 of the Protection of the Environment Operations Act 1997 (Court orders in connection with offences) applies to an offence against this Act or the regulations in the same way as it applies to an offence against that Act or the regulations under that Act, but only in relation to proceedings before the Court and subject to any modifications prescribed by the regulations under this Act.

117. The importation of Part 8.3 of the Protection of the Environment Operations Act 1995 (the POEO Act) as a suite of available measures in such circumstances has the effect, in the context of the matters here requiring consideration, of the potential for the making of publication orders as provided for in s 250(1)(a) of the POEO Act. That provision is in the following terms:

250 Additional orders

(1) Orders

The court may do any one or more of the following:

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

118. The transitionary positions engaged as a consequence of the coming into force of these provisions are contained in Schedule 7, Part 8 Provisions consequent on enactment of Environmental Planning and Assessment Amendment Act 2014 in the Environmental Planning and Assessment Regulation 2000. The transitionary provision here relevant is in cl 43, which reads:

43 Alternative sentencing options in relation to existing proceedings

Section 126 (2A) of the Act, as inserted by the amending Act, extends to the power to make court orders in connection with offences in proceedings that have been instituted, but not finally disposed of, before the commencement of the subsection (including proceedings where the offence has been proven before the commencement of the subsection but where the offender has not yet been sentenced).

Issues to be considered concerning publication notices

119. During the course of this sentencing hearing, I raised with the parties two matters concerning these provisions. I did so because the option of requiring publication orders in addition to any financial penalties had not been raised in the Prosecutor's submissions on penalty. The matters I raised were:

• First, as a matter of proper statutory construction, was the publication order option available to me given that the offences to which AGL had pleaded guilty were committed prior to s 126(2A) of the EP&A Act coming into effect but the prosecution proceedings had not been instituted until after the provision came into effect? and

• Second, if the option of publication orders was available to me, should I avail myself of it?

Is a publication notice a penalty?

120. The first matter that requires consideration is whether a publication order would constitute an additional penalty. If so, retrospective liability for an increased penalty is not permitted as a consequence of s 19(1) of the Sentencing Procedure Act, a provision which reads:

19 Effect of alterations in penalties

(1) If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.

121. It is, therefore, necessary to consider whether a publication order is to be regarded as a penalty – if so, such an order could only be imposed for offences committed (rather than charged) after s 126(2A) came into effect.

122. To understand the competing positions on this point, it is appropriate to set out, in full, the written submissions from Mr Howard and the Prosecutor on this point. First, Mr Howard submitted:

A PUBLICATION ORDER IS PUNITIVE

19.   The making of a publication order under s 250(1) of the POEO Act constitutes punishment, and the imposition of a penalty, for a criminal offence. Plainly, the nature and purpose of such an order is to shame the offender.

Punitive nature & purpose confirmed by Parliamentary second reading speeches

20.   That the nature and purpose of such an order is to shame the offender is self­evident, but, in any event, that clearly emerges from the second reading speeches in the NSW Parliament when publication orders were introduced, respectively, in 1997, upon the introduction to the Parliament of the Protection of the Environment Operations Bill 1997 (POEO Bill) and in 2015, upon the introduction to the Parliament of the Environmental Planning and Assessment Amendment Bill 2014 (EPA Amendment Bill 2014).

21.   Upon the introduction of the POEO Bill in 1997, the then Attorney General, the Hon. J.W. Shaw MP made the following remarks during his second reading speech:

"Court Proceedings and sentencing: in addition to doubling the penalty regime for application by the Courts, the Bill clarifies who can initiate Court proceedings and also gives the Courts a wider range of sentencing options. We are working to broaden the options available to the Courts. We want to change the behaviour and improved environmental performance and are giving the Courts an opportunity to teach a salutary lesson to those who have been found guilty. For example the Court can require a guilty party to publicise the facts of their offence in the media or require them to perform an environmental service such as restoring a public place."

22.   The nature and purpose of a publication order under s 250(1) of the POEO Act was even more plainly characterised in the second reading speech upon the introduction to the Parliament of the EPA Amendment Bill 2014, when the then Minister for Planning, the Hon. P. Goward MP relevantly said:

"To support the three tier offence regime, the Bill also gives the Land and Environment Court alternative sentencing options when dealing with criminal proceedings. This was another key recommendation of the independent review by the Hon Tim Moore and the Hon Ron Dyer. Alternative sentencing options provide the Courts with a range of responses to offences beyond monetary penalties. Consistent with the Protection of the Environment Operations Act, the Bill will allow the Court to make orders requiring the offender to publish details of the oftence; to name and shame companies that flout planning controls ..."

23.   It is clear also from the report of the independent review to which the Minister made reference in the passage from her reading speech extracted above that the purpose of such orders was to shame offenders. In the review report, notices published pursuant to such orders are described as "mea culpa shaming notices in local and major newspapers (such notices being considered of equal deterrent effect to financial penalties in many cases)" and the key recommendation of the report to which the Minister referred in her second reading speech is a recommendation in these terms:

"Broad restorative order and shaming notices powers are to be provided as sentencing options for the Land and Environment Court in the proposed new legislation." [emphasis added]

Characterisation of publication orders as punitive by this Court

24.   There have been several statements made by this Court which confirm that the nature of a publication order is considered by this Court to be punitive.

25.   The clearest and most recent statement to that effect was the following statement made by the Court in Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76, in relation to the making of publication orders under s 250(1) of the POEO Act, at [167]:

“Such public shaming is, in a very general analogy, the corporate equivalent to the mediaeval practice of putting an offender in the stocks in the community marketplace and is an aspect of the general deterrence from proceedings such as these''.

26.   In Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419, this Court (Preston CJ) said, at [242]:

"Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma ..."

[His Honour then cited a number of academic articles in support of these propositions, including "The Use of Publicity as a Criminal Sanction against Business Corporations" (1971-1972) 8 Melb ULR 107.]

27.   There are a number of other decisions of this Court in which statements have been made to the effect that such orders serve the purpose of deterrence: e.g., Environment Protection Authority v Metalcorp Recyclers Pty limited [2004] NSWLEC 14 at [38]-[39]; Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23 at [192]); Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 at [33]; and Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 at [138]. Such statements implicitly recognise the punitive nature of publication orders.

123. The Prosecutor’s submissions in response on this point were:

A publication order is not a penalty, nor is it punitive

17   A publication order is not punitive nor is it in the nature of a penalty for past conduct.

18   Provisions of the Crimes (Sentencing Procedure) Act form part of the context of s 126(2A) because they provide for what a penalty is under any enactment. Section 18(1) indicates that a penalty is the provision at the end of a section or subsection of an Act which:

indicates that a contravention of the section, subsection or part, respectively, is an offence against the Act, punishable on conviction by a penalty not exceeding the penalty so specified.

19 This is confirmed by s 18(3) Crimes (Sentencing Procedure) Act:

If:

(a)   a section of an Act, or a subsection of a section of an Act, provides that a person is guilty of an offence under specified circumstances, and

(b)   a penalty is specified at the end of the section or subsection and expressed in such a way as to indicate that it applies to the section or subsection,

a person who is guilty of such an offence is liable, on conviction, to a penalty not exceeding the penalty so specified.

20 Plainly neither s 126(2A) EP&A Act nor Part 8.3 POEO Act are a penalty. Following s 18, the next section of the Crimes (Sentencing Procedure) Act makes specific provision for what the effect is of the alteration of penalties. Section 19(1) relevantly provides:

If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.

21 Again, plainly s 19 cannot apply to the application by s 126(2A) EP&A Act of the provisions of Part 8.3 POEO Act to these proceedings.

22 This is confirmed by the provisions of Part 8.3 POEO Act themselves. An order under Part 8A POEO Act is explicitly "additional" to any penalty which may be imposed. Section 244(2) and (3) POEO Act provide:

(2) Orders are additional

Orders may be made under this Part in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence.

(3) Other action not required

Orders may be made under this Part regardless of whether any penalty is imposed, or other action taken, in relation to the offence.

23 Given that a publication order can be made only when an offender's offence has been found proved by a court, a publication order has nothing to do with proof of an offender's guilt. And the statute expressly distinguishes an order under Part 8.3 from a penalty.

24   That a publication order does not have a punitive character was confirmed by the Court of Criminal Appeal in Harris v Harrison [2014] NSWCCA 84; 86 NSWLR 422. That decision was an appeal from the sentence imposed by this Court (Pepper J) for offences against the Water Management Act 2000. Amongst other things, the Court of Criminal Appeal determined that errors were made in the factual findings on sentence. Considering the appeal from the publication order made in that case, Simpson J (as her Honour then was) said (at [128] (Hall & Schmidt JJ agreeing)):

The provision for publication orders has, in my opinion, a significant educative and deterrent function. It is important that others who may be minded to commit offences against the WM Act be made aware of the possible consequences of such offences. On behalf of the appellant it was argued that the publication order ought to be set aside, primarily because the offence was "trivial" or "technical". I do not accept these descriptions. …

25   When considering whether the Court of Criminal Appeal had jurisdiction under the Criminal Appeal Act 1912 to entertain an appeal from a publication order, the Court said (at [118], emphasis added):

... a publication order, while not a penalty, is intended to be remedial and even educative, rather than punitive, and to have a deterrent effect.

26   In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; 148 LGERA 299, where a publication order was made by consent, Preston J said (at [242]-[243], citation of authority omitted):

Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma ...

The Court has made publication orders in numerous cases: ...

(See also Environmental Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23 at [192] and Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 at [242]; Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131 at [155].)

27   In Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 4) [2014] NSWLEC 74, Pain J acknowledged the efficacy of publication orders as a general deterrent (at [102]) but declined to make one in that case because the offence had been "well advertised". Her Honour concluded (at [103]) that:

The publicity has fulfilled the objective of making publication orders more effectively than an advertisement.

28   In summary, although a publication order is intended to have a deterrent effect and the impact on a defendant of it being made should be taken into account when fixing penalty, a publication order is neither part of the penalty, nor is it correctly characterised for current purposes as punitive.

29   It follows that the provisions of s 30(1) Interpretation Act 1986 relating to amendment of a provision of a statute affecting any penalty have no application in this case.

124. Finally, Mr Howard’s submissions in reply on this point were in the following terms:

Introduction

These are the defendants' submissions in reply to paragraphs [24] and [25] of the Prosecutor's Submissions Re Publication Order, filed 7 September 2016.

The proposition put by the prosecutor, at [24], is that remarks made by Simpson J in Harris v Harrison [2014] NSWCCA 84 at (118] and [128] confirm that a publication order is not punitive in character. For the reasons which follow, a balanced consideration of her Honour's judgment does not support that proposition and certainly not if the form of publication order is one which identifies the offender.

The point in issue in Harris v Harrison

Harris v Harrison was an appeal against the severity of the sentence imposed by the Land and Environment Court (LEC) on an offender for an offence under the Water Management Act 2000 (WM Act). The relevant contention the Court of Criminal Appeal was called upon to determine was that the publication order made by the LEC under s 353G(1) of the WM Act, was not a "sentence" within the meaning of s 5AA(1) of the Criminal Appeal Act 1912 and was therefore not subject to appeal in the Court of Criminal Appeal.

The important point of construction re s 353A(2) of the WM Act

The respondent in Harris v Harrison put two propositions in support of that contention. The first proposition was based upon the wording of s 353A(2) of the WM Act, which provides: "orders may be made under this Part ... in addition to any penalty that may be imposed ..." [emphasis added]. The respondent put the proposition that this language gave rise to an inference that an order made Part 3A of Chapter 7 of the WM Act, which relevantly included a publication order under s 353G of the WM Act, was not a "penalty".

For present purposes, the most significant point to emerge from Harris v Harrison is that the Court rejected that proposition. It is also important to understand why.

At [108] Simpson J acknowledged that the language of s 353A(2) of the WM Act supported the respondent's proposition, because it used the phrase "in addition to any penalty". Her Honour said "it would be otherwise if the language used were 'in addition to any other penalty'. I will return to this".

Simpson J did indeed return to that point at [122], ultimately finding, at [127]:

Orders under s 353A may only be made on conviction. The avoidance of absurdity and of injustice demands that s 353A(2) be read as though the word "other" appeared before "penalty".

One sensibly concludes from what Simpson J says at [127] that her Honour considered an order made under Part 3A of the Chapter 7 of the WM Act, including a publication order would, or could, be considered to be a "penalty". Otherwise there would have been no need to make a finding that [t]he avoidance of absurdity and of injustice demands that 353A(2) be read as though the word "other" appeared before "penalty".

It is significant that s 244{2) of the POEO Act (imported by s 126(2A) of the EPA Act) is relevantly in identical terms to s 353A(2) of the WM Act. It provides that "orders may be made under this Part in addition to any penalty ...".

The point of construction made by Simpson J in respect of s 353A(2) of the WM Act at [127] must sensibly apply also to s 244(2) of the POEO Act, such that it should be read as if it provided "orders may be made under this Part in addition to any other penalty".

Thus, the reasoning of Simpson J in Harris v Harrison supports the proposition that an order made under Part 8.3 of the POEO Act is, or can be, a penalty.

A closer consideration of the remarks made by Simpson J at [118] and following

The second proposition put by the respondent in Harris v Harrison was that a publication order did not fall within the definition of "sentence" in s 2 of Criminal Appeal Act. It was in the course of rejecting that proposition that Simpson J made the remarks extracted by the prosecutor at [25] of the prosecutor's written submissions.

At [25] of the prosecutor's submissions, the prosecutor has extracted part of [118] of the judgment and has placed emphasis on some of the words as follows:

... a publication order, while not a penalty, is intended to be remedial and even educative, rather than punitive, and to have a deterrent effect. [emphasis added by the prosecutor]

However, that paragraph should be considered as a whole, with a counter-balancing emphasis placed on another important part of the passage, as follows:

118   The third flaw in the argument is that a publication order, while not a penalty, is intended to be remedial and even educative, rather than punitive and to have a deterrent effect. It is also undoubtedly "an order by a court ... on convicting a person of an offence". While a publication order is not (or may not be) a penalty in that respect it is not to be distinguished from other of the orders mentioned in the catalogue of orders that follow the opening words of the definition [emphasis added by the defendants]

One would reasonably conclude from this paragraph, read as a whole, that Simpson J left open the proposition that a publication order may be a "penalty", notwithstanding the first sentence of that paragraph.

It is only when one has regard to the discussion that follows [118] that one can understand why the language used by Simpson J at [118] included the phrase "while a publication order is not (or may not be) a penalty” [emphasis added].

Considered in context there are only two ways in which [118] of her Honour's judgment properly may be interpreted. The first possibility is that, at that point in the judgment, her Honour was accepting as a prima facie proposition that there was an inference from the wording of s 353(2A) that a publication order was not "a penalty". This was the contention which her Honour had acknowledged had force at [108]. Her Honour returned to that proposition and ultimately rejected it, but not until the part of the judgment which immediately followed her Honour's remarks at [118].

The other way in which her Honour's remarks at [118] that "while a publication order is not (or may not be) a penalty” may be understood is by considering them in the context of what her Honour said later at [128]. There, her Honour said that a publication order may have "a significant educative and deterrent function" and, with those functions expressly in mind, concluded "[i]t is not necessary to identify the appellant”. It is evident from the terms of the order which comprises Annexure A to the judgment that the Court of Criminal Appeal did not identify the offender in the publication order.

Thus, what Simpson J may have meant when she remarked that a publication order is not (or mav not be) a penalty is that whether it is, or is not, a penalty, will depend on the form of the order and, in particular, whether it identifies the offender.

The nature of a publication order

Simpson J's remarks at [118] about the nature of a publication order being "remedial" and "educative" were by way of obiter dicta. This Court is not bound by the decision in Harris v Harrison to characterise a publication order in that way.

It may properly be inferred that there has been a more targeted debate in these proceedings as to the nature of such an order than there was in Harris v Harrison, referable, inter alia, to the relevant passages from the second reading speeches and the judicial comments the defendants have drawn to this Court's attention in their primary submissions. The Court should not resile from accepting the essentially punitive nature of a publication order, given the material that has been brought to its attention.

If, on the other hand, the Court is persuaded by the remarks made by Simpson J in Harris v Harrison that a publication order is not, or may not be, punitive in character, but rather is, or may be, "remedial" or "educative", and the Court decides to make a publication order, it follows that any such order should be of the same character as that which the Court of Criminal Appeal made in Harris v Harrison, namely an order which does not identify either of the defendants.

125. In order to understand whether or not requiring a publication notice pursuant to s 250(1)(a) is or is not a penalty, it is necessary to have a broad understanding of the range of matters covered by the additional court orders powers in Pt 8.3 of the POEO Act. Some of the orders permitted to be made by the part, such as orders for restoration and prevention pursuant to s 245, are clearly therapeutic rather than punitive. On the other hand, the power to make an order regarding monetary benefits, a power contained in s 249, is clearly one providing the power to impose a penalty as this is specifically described as being the case in the terms of the section.

126. It therefore seems to me that, if I were to conclude that a publication order constituted a penalty, there would nonetheless be a range of other orders, clearly not punitive, that would be able to operate pursuant to the transitionary provision set out above without contravention of s 19(1) of the Sentencing Procedure Act.

127. It therefore follows that the transitionary provision cannot be regarded as mandating availability of publication orders in circumstances such as these, as there would remain proper work for the transitionary provision to do even if publication orders were to be regarded as being punitive, and therefore not available in circumstances such as these where the imposition of such an order (if punitive) would breach s 19(1) of the Sentencing Procedure Act.

128. I have, earlier, set out in full the submissions made on the characterisation of publication orders. I am satisfied that the submissions made on behalf of AGL are to be preferred. Indeed, the analysis at [127] in Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84, earlier discussed in [7] to [11] of Mr Howard’s submissions in reply on this aspect, is an appropriate approach to take that some orders made pursuant to s 126(2A) of the EP&A Act can be regarded as additional penalties. Whilst some, as observed above concerning s 249 of the POEO Act, are clearly punitive, the proposition advanced on behalf the Prosecutor is that this is not the position with respect to publication orders pursuant to s 250(1)(a).

129. The answer to this, it seems to me, lies in the analysis in Harris v Harrison, commencing at [107], as to whether a publication order can form part of a sentence for the purposes of the Criminal Appeal Act. The analysis by Simpson J (Hall and Schmidt JJ concurring) was that a publication order founded in provisions of the Water Management Act 2000, identical to those here applicable, did constitute part of a sentence and was, therefore, amenable to appeal. It is clear from this portion of her Honour’s analysis that, taken as a whole, a publication order, in addition to being educative in a general sense to the wider audience to read it after it is published, is also intended to have a punitive impact on the reputation of the convicted party.

130. In Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76, I observed, at [167]:

Such public shaming is, in a very general analogy, the corporate equivalent of the mediaeval practice of putting an offender in the stocks in the community marketplace and is an aspect of the general deterrence from proceedings such as these.

131. Similarly, in Environment Protection Authority v Waste Recycling and Processing Corporation, Preston CJ commented, at [242]:

Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent.

132. By its terms, I consider it appropriate to read the Chief Judge’s comment as recognising that publication orders serve a punitive as well as educative function.

133. As a consequence, whilst I would have ordered publication notices for these offences had I had the power to do so, I have reluctantly concluded that, was I to indulge this inclination, I would be in breach of s 19(1) of the Sentencing Procedure Act, as doing so would be imposing a penalty on AGL that was not a penalty available to be imposed on AGL as at the date each of the offences charged occurred.

A moiety of the fines to the Prosecutor?

134. In these proceedings, the Prosecutor seeks an order that she be paid a moiety of up to 50% of each of the fines imposed for the offences to which AGL Energy and AGL Upstream have pleaded guilty. The concept of a moiety is defined in Stroud's Judicial Dictionary 9th Edition as being a half portion of a whole.

135. The statutory foundation for being able to grant a moiety to the Prosecutor in circumstances such as these arises from the provisions of s 122 of the Fines Act. That provision is in the following terms:

122   Payment of share of fine to prosecutor

(1)  This section applies where:

(a)  the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and

(b)  the prosecutor is not a police officer.

(2)  The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor.

...

136. There is no dispute that the Prosecutor in these proceedings is able to be a beneficiary of such an order, nor is there any doubt that the pecuniary penalties earlier discussed fall within the scope of the making of such orders.

137. Although s 126(1) of the EP&A Act provides the statutory basis for imposing the fines that will arise from these proceedings, it is silent on how the money is to be applied. In the ordinary course of events, such a penalty is required to be paid to the Registrar of the Court within 28 days of its imposition and, if not so paid, the liability is referred to the State Debt Recovery Office for appropriate recovery action to be undertaken. In any event, however collected, the money from the fines becomes part of consolidated revenue and forms part of the pool of moneys allocated to the various public purposes for which provision is made in the State Budget.

138. In these proceedings, I have had the advantage of detailed written proceedings from the Prosecutor in support of the application for a moiety of each of the fines in these various proceedings being paid to the Prosecutor. Understandably, as the outcome of this consideration is not a matter of moment for AGL, no submissions were made by AGL on this point.

139. Although there is a deal of history in other jurisdictions concerning such allocation of financial penalties, my examination of the case law in the industrial jurisdiction provides little assistance in the present context of the EP&A Act and its present legislative structure concerning prosecutions.

140. Similarly, the decision of Pearlman CJ in Hawkesbury City Council v Mushroom Composters Pty Ltd (No 3) (1996) 90 LGERA 395 is of little assistance in the present statutory context. Although the legislation with which her Honour was dealing was the Fines and Penalties Act 1901, the effect of the relevant provision in that legislation did not differ, in any functional fashion, from that requiring consideration here. Her Honour declined to award a moiety to the Council that had undertaken the prosecution in those proceedings. In doing so, her Honour said:

I am not, however, prepared to exercise my discretion in the Council's favour by directing the payment of a moiety of the fine to it. The Council has a statutory duty to enforce the planning law of this state, the actions it took in these proceedings were in furtherance of that duty. That is far from the rationale of s 5(3). As I noted in the February judgment, provision such a s 5(3) are designed to encourage common informers to sue for breach of statutes by allowing the informer to recover part of the resulting penalty. A provision such as s 5(3) is not designed to reward a party bringing proceedings in the discharge of its ordinary functions. Furthermore, s 5(3) is not designed to reimburse a party for its costs, and in this case the cost of the Council in bringing the proceedings were the subject of a costs agreement between the parties.

141. Although the Court of Appeal (Hawkesbury City Council v Foster & Mushroom Composters Pty Ltd (1997) 97 LGERA 12) upheld her Honour's decision, it did so on a different basis than that which I have outlined above from her Honour’s reasons. The Court of Appeal held that, as the fine in that instance was a fine for contempt and was not a fine imposed pursuant to a statute, it did not fall within the scope of the statutory provision then applicable (a position replicated in the relevant current statutory provision).

141. Although her Honour’s reasoning relied, in the passage quoted, on the role of the Council as a public authority with a responsibility to enforce the planning law, the position has moved on, into critical but sequential respects since then. Before moving on to discuss them, it is appropriate to note, at this point, that the question of whether or not a moiety should be granted to a prosecutor is a matter where the question of whether or not such a direction should be made in any given case remains in the unfettered discretion of the Court (Prosecutor’s written submissions re application for moiety at [16]). Such a discretion must be exercised judicially and not capriciously and must be done so after consideration of the relevant legislative framework applicable at the time such an application is made and after consideration of the facts and circumstances of the cases.

142. The first matter requiring consideration is the decision of Preston CJ in Secretary, Department of Planning and Environment v Boggabri Coal [2014] NSWLEC 154, where his Honour considered whether s 122 of the Fines Act was applicable to fines imposed as a result of prosecutions under the EP&A Act. His Honour held that the provision was available for consideration. His Honour did not take the confined view that had been taken in Mushroom Composters that the appropriate compensatory mechanism was either a costs agreement between the parties or a costs order in favour of the prosecutor. His Honour was considering the application for a moiety in circumstances where, although a costs order might be made which was compensatory for legal costs incurred by the prosecutor, his Honour lacked the ability to order the reimbursement of the prosecutor by the defendant for the costs and expenses reasonably incurred during the investigation phase prior to the commencement of the prosecution. His Honour observed, at [62]:

A justification for making a direction under s 122 of the Fines Act in this case is that, under the Environmental Planning and Assessment Act, the Court cannot make an order that the prosecutor be paid the costs and expenses it reasonably incurred during the investigation of the offence, unlike under s 248(1) of the Protection of the Environment Operations Act 1997. An order that the offender pay the prosecutor's legal costs of the proceedings does not include costs and expenses incurred during the investigation of an offence and before the prosecution has been commenced. Payment of a moiety in the fine to the prosecutor may compensate the prosecutor for the costs and expenses it incurred during the investigation of the offence.As a consequence, his Honour directed that a moiety of one half of the penalty imposed in those proceedings be paid to the prosecutor.

144. In doing so, in circumstances where there was no ability to reimburse the prosecutor for investigation expenses, his Honour clearly departed from the position adopted by Pearlman CJ in Mushroom Composters. I note, however, that Preston CJ does not appear to have had his attention drawn to Mushroom Composters.

145. In these proceedings, it is clear that the Prosecutor has responsibility, for the Department with legislative responsibility within the structure of the State Government, for administration of the EP&A Act. In the Prosecutor’s written submissions on this point, the submissions said (at [19]):

The statutory notices which were issued by the Department in the present case and the responses received thereto, highlight the resource-intensive nature of investigations of possible breaches under s 147 the EP&A Act, and the detailed analysis that is involved in assessing whether any such offences have been committed.

146. In support of that submission, the Prosecutor cited elements of the Agreed Statement of Facts dealing with this point – paragraphs 289 to 296 and 297(c). In [19] of the Prosecutor's submissions, immediately after the citation of these elements of the Statement of Agreed Facts, the Prosecutor submitted:

A moiety would appropriately compensate the Prosecutor for the efforts which are entailed in bringing a prosecution under this significant provision.

147. The final substantive element in the Prosecutor’s submissions said, in [20]:

Further, there is nothing in the circumstances of the present case that would lead the court to conclude that it ought not direct that a moiety be paid to the Prosecutor.

148. This submission, however, sidesteps the second significant development relevant in this context since the decision of the former Chief Judge in Mushroom Composters. It is also a significant difference that has arisen since the decision of Preston CJ in Secretary v Boggabri. The Prosecutor in these proceedings notes this further, relevant new development in [16], where the Prosecutor says:

Since the decision in Secretary, the EP&A Act has been amended so as to apply s 248(1) PEO Act to proceedings brought under the Act (see s 126(2A)). However, this does not preclude a direction under s 122 of the Fines Act being made in proceedings brought under the EP&A Act.

149. This noting of the amendment of the EP&A Act in the Prosecutor's submissions was followed immediately by the earlier quoted statement concerning the unfettered discretion of the Court in circumstances such as these.

150. I have earlier explained, in the context of my consideration of the making of ancillary publication orders, why the enactment of s 126(2A) of the EP&A Act and its coming into effect on 15 July 2015, being a date prior to the commencement of these prosecutions, meant that the full suite of additional therapeutic (but not punitive) powers contained in Pt 8.3 of the POEO Act were available with respect to all of these prosecutions. Section 248(1) of the POEO Act is part of the suite of therapeutic powers now available to this Court in prosecutions such as these. That provision relevantly reads:

248   Orders regarding costs and expenses of investigation

(1)   The court may, if it appears to the court that a regulatory authority has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the regulatory authority the costs and expenses so incurred in such amount as is fixed by the order.

151. It is clear that this provision squarely addresses the then legislative deficiency that was sought to be addressed by Preston CJ by his decision in Secretary v Boggabri. The clear public policy outcome that his Honour achieved in those proceedings was to ensure that the costs of investigation that would need to be incurred by a public authority as a necessary precursor to the commencement of a prosecution would be compensated (at least to the extent of a moiety of the penalty, even if this was not completely compensatory) so that there would at least be some diminution of the budgetary disincentive for undertaking such prosecutions.

152. As the Parliament has now removed this and has provided a specific and adequate statutory basis for a court to order reimbursement of a prosecutor for such expenses (without there being the ceiling that a moiety imposes of a maximum of half the financial penalties imposed), the question of the appropriateness of making a discretionary award on the basis founding that made by Preston CJ has now disappeared.

153. However, as the discretion made available by s 122 of the Fines Act is a broad one, there may well be other jurisdictions where the ability to impose a compensatory order (as is given by s 248(1) of the POEO Act) is not available and, clearly my analysis in these proceedings cannot bear on such circumstances.

154. Here, the Prosecutor has clearly been aware of the changes to the legislation potentially making such a compensatory order available (subject to me being satisfied that I had the power so to do, as, for the reasons earlier set out, I am so satisfied). I have considered whether I should have regard to the fact that the Prosecutor has not, in these proceedings, sought an order for reimbursement of investigation costs of the nature for which there is now a proper statutory foundation.

155. I have concluded that it would not be appropriate to regard the absence of an application for such an order as forming some disentitling election by the Prosecutor. Had the Prosecutor sought such an order and also applied for a moiety, I might well have followed the implicit reasoning in the Chief Judge's decision in Secretary v Boggabri and declined to exercise a discretion to award a moiety in circumstances where a statutorily based order would have achieved the same outcome and the awarding of a moiety might well have been regarded as a windfall.

156. However, that is not here the case and I am satisfied that it would be appropriate to exercise my discretion and award a moiety of 50% of each of the fines imposed in these prosecutions to the Prosecutor.

157. In this instance, the Prosecutor has chosen to seek recompense, at least to some extent, through the application for a moiety of each of the penalties which I impose in these proceedings. That is a choice entirely open to the Prosecutor and my discussion on this point is not to be taken to be a criticism of that election, far from it. All I have sought to do in this analysis is to explain that there is an appropriate contextual basis as to why it is appropriate for me to exercise my discretion pursuant to s 122 of the Fines Act to accede to the Prosecutor's request and make the relevant direction in each of the proceedings.

158. However, I also wish to make it clear that I am not to be taken as suggesting that there may not be other reasons why the ordering of a moiety might be appropriate. Specifically, it seems to me that there may be a basis for a prosecutor to seek both reimbursement of investigation expenses and a moiety of a fine in circumstances where a prosecutor could demonstrate that such an additional payment might support the sustaining, on a more general basis, of environmental law enforcement activities of the prosecuting authority.

159. Consideration of such a proposition is, of course, for another day and other proceedings should a prosecutor choose to advance such a proposition.

Orders

160. It therefore follows that the orders of the Court are:

In Matter No 152666 of 2016:

1. AGL Energy Ltd (the Defendant) is convicted of a breach of s 125(1) of the Environmental Planning and Assessment Act 1979;

2. The Defendant is fined $8,000; and

3. Pursuant to s 122(2) of the Fines Act 1996, the Registrar is directed to pay to the Prosecutor one half of the fine imposed pursuant to (2).

In Matter No 152667 of 2016:

1. AGL Energy Ltd (the Defendant) is convicted of a breach of s 125(1) of the Environmental Planning and Assessment Act 1979;

2. The Defendant is fined $12,000; and

3. Pursuant to s 122(2) of the Fines Act 1996, the Registrar is directed to pay to the Prosecutor one half of the fine imposed pursuant to (2).

In Matter No 152668 of 2016:

(1) AGL Energy Ltd (the Defendant) is convicted of a breach of s 125(1) of the Environmental Planning and Assessment Act 1979;

(2)   The Defendant is fined $12,000; and

(3) Pursuant to s 122(2) of the Fines Act 1996, the Registrar is directed to pay to the Prosecutor one half of the fine imposed pursuant to (2).

In Matter No 152669 of 2016:

(1) AGL Energy Ltd (the Defendant) is convicted of a breach of s 125(1) of the Environmental Planning and Assessment Act 1979;

(2)   The Defendant is fined $12,000; and

(3) Pursuant to s 122(2) of the Fines Act 1996, the Registrar is directed to pay to the Prosecutor one half of the fine imposed pursuant to (2).

In Matter No 152670 of 2016:

(1) AGL Energy Ltd (the Defendant) is convicted of a breach of s 125(1) of the Environmental Planning and Assessment Act 1979;

(2)   The Defendant is fined $8,000; and

(3) Pursuant to s 122(2) of the Fines Act 1996, the Registrar is directed to pay to the Prosecutor one half of the fine imposed pursuant to (2).

In Matter No 152671 of 2016:

(1) AGL Energy Ltd (the Defendant) is convicted of a breach of s 125(1) of the Environmental Planning and Assessment Act 1979;

(2)   The Defendant is fined $12,000; and

(3) Pursuant to s 122(2) of the Fines Act 1996, the Registrar is directed to pay to the Prosecutor one half of the fine imposed pursuant to (2).

In Matter No 152672 of 2016:

(1) AGL Energy Ltd (the Defendant) is convicted of a breach of s 125(1) of the Environmental Planning and Assessment Act 1979;

(2)   The Defendant is fined $12,000; and

(3) Pursuant to s 122(2) of the Fines Act 1996, the Registrar is directed to pay to the Prosecutor one half of the fine imposed pursuant to (2).

In Matter No 152673 of 2016:

(1) AGL Energy Ltd (the Defendant) is convicted of a breach of s 125(1) of the Environmental Planning and Assessment Act 1979;

(2)   The Defendant is fined $12,000; and

(3) Pursuant to s 122(2) of the Fines Act 1996, the Registrar is directed to pay to the Prosecutor one half of the fine imposed pursuant to (2).

In Matter No 152674 of 2016:

(1) AGL Energy Ltd (the Defendant) is convicted of a breach of s 125(1) of the Environmental Planning and Assessment Act 1979;

(2)   The Defendant is fined $12,000; and

(3) Pursuant to s 122(2) of the Fines Act 1996, the Registrar is directed to pay to the Prosecutor one half of the fine imposed pursuant to (2).

In Matter No 152675 of 2016:

(1) AGL Energy Ltd (the Defendant) is convicted of a breach of s 125(1) of the Environmental Planning and Assessment Act 1979;

(2)   The Defendant is fined $12,000; and

(3) Pursuant to s 122(2) of the Fines Act 1996, the Registrar is directed to pay to the Prosecutor one half of the fine imposed pursuant to (2).

In Matter No 153041 of 2016:

(1) AGL Upstream Infrastructure Investments Pty Ltd (the Defendant) is convicted of a breach of s 125(1) of the Environmental Planning and Assessment Act 1979;

(2)   The Defendant is fined $12,000; and

(3) Pursuant to s 122(2) of the Fines Act 1996, the Registrar is directed to pay to the Prosecutor one half of the fine imposed pursuant to (2).

161. The further order of the Court, in all proceedings, is:

Pursuant to s 257B of the Criminal Procedure Act 1986, the Defendants are ordered to pay to the Registrar of the Court, for payment to the Prosecutor, such costs as are determined under section 257G of the Criminal Procedure Act 1986.

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Appendix 1

Appendix 2

Amendments

12 January 2017 - Administrative implementation of orders

Decision last updated: 12 January 2017