Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 5)

Case •

[2020] NSWLEC 65

•

09 June 2020

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 5) [2020] NSWLEC 65
Hearing dates: 4 and 5 June
Date of orders: 05 June 2020
Decision date: 09 June 2020
Jurisdiction:Class 5
Before: Pepper J
Decision:

Notice of motion dismissed.

Catchwords: ENVIRONMENTAL OFFENCES: application for orders under ss 10 and 10A of the Crimes (Sentencing Procedure Act) 1999 at commencement of sentencing hearing on the basis of unfairness caused by the prosecutor amending a summons to particularise the charge as a Tier 2 offence instead of a Tier 1 offence – offence remained the same – whether loss of opportunity to plead to a different offence – whether wasted costs in preparing for Tier 1 offence sufficient to warrant making of orders – extent of environmental harm caused by the commission of the offence a relevant sentencing factor - application dismissed – defendant not precluded from making a similar application at conclusion of sentence hearing.
Legislation Cited: Crimes Act 1900, s 556A
Crimes (Sentencing Procedure) Act 1999, ss 10, 10A 21A
Criminal Procedure Act 1986, ss 257B, 257C
Environmental Planning and Assessment Act 1979, ss 81A(4), 125(1), 125A, 125B
Interpretation Act 1987, s 21
Cases Cited: Bikhit v The Queen [2007] NSWCCA 202
Blue Mountains City Council v Carlon [2008] NSWLEC 296
Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51; (2013) 199 LGERA 1
Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312
Environment Protection Authority v Attard [2000] NSWCCA 242
Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100
Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88
Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104
Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160
Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45; (2016) 217 LGERA 332
Hoffenberg v The District Court of New South Wales [2010] NSWCA 142
Holroyd City Council v El-Khouri [2008] NSWLEC 83
Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22
Lavorato v The Queen [2012] NSWCCA 61; (2012) 82 NSWLR 568
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; 122 LGERA 89
Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 3) [2005] NSWLEC 423
Parramatta City Council v Cheng [2010] NSWLEC 94
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Paris [2001] NSWCCA 83
R v Piccin (No 2) [2001] NSWCCA 323
Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58
Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114
Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141
Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60
Texts Cited: S Odgers, Sentence (4th ed, 2018, Longueville Media Pty Ltd)
Category:Sentence
Parties: Secretary, Department of Planning and Environment (Prosecutor)
Leda Manorstead Pty Ltd (Defendant)
Representation:

Counsel:
J Single SC with A Garsia (Prosecutor)
A Galasso SC with B Anniwell (Defendant)

  Solicitors:
Department of Planning, Industry and Environment (Prosecutor)
Mills Oakley (Defendant)
File Number(s): 2017/186631, 2017/186632, 2017/186634, 2017/186635

Judgment

At Commencement of the Sentence Hearing Leda Seeks to Have Charges Dismissed Without Proceeding to Conviction

  1. The defendant, Leda Manorstead Pty Ltd (“Leda”), was found guilty of three charges relating to breaches of s 125(1) of the Environmental Planning and Assessment Act 1979 (“EPAA”) (Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58.

  2. This judgment must be read in conjunction with Leda (No 4). The abbreviations employed here mirror those used in Leda (No 4) unless otherwise specified.

  3. In Leda (No 4) the following observations were made about the three summonses pursuant to which Leda was charged. They are relevantly repeated here for convenience (at [47]-[53]):

47 There are several observations that must be made in respect of the charges against Leda. First, Leda faces three charges for alleged offences in contravention of s 125(1) of the EPAA concerning alleged breaches of conditions 21A b. and 41 of the Project Approval contrary to s 75D of the EPAA, which states that a person carrying out a Pt 3A project must comply with any conditions to which the project approval is subject.

48 Part 3A of the EPAA was repealed effective on 1 October 2011. However, the relevant provisions of Pt 3A of the Act continued to apply at all relevant times to the project by reason of the application of the savings and transitional provisions contained in Sch 6A of that Act (see, in particular, cls 2 and 3 of Sch 6A).

49   Second the charges in matter no 186631 of 2017 (“the first summons”) and matter no 186632 (“the second summons”) alleges a continuing contravention by the Leda of condition 21A b. of Sch 2 to the Project Approval over a nominated charge period, namely, in the first summons, “on and from 21 April 2014 and continuing to 30 July 2015”, and in the second summons, "on and from 31 July 2015 and continuing to 7 March 2017”. The charge periods in the first and second summonses are therefore temporally contiguous.

50 Third, a separate offence is charged for the period on and from 31 July 2015 under the second summons because that was the date on which material amendments to the EPAA came into force creating the three tier sentencing regime by the introduction of ss 125A to 125C of that Act. This materially altered the penalty provision previously applicable to the entirety of the charge period in the first summons.

51 Fourth, the particulars of the second summons include particulars of the matters specified in s 125A(1)(a) and (b) of the EPAA, namely, that the offence was committed intentionally and was likely to cause significant harm to the environment.

52 In Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114, Pain J held that those matters were not elements of a separate offence but were matters in respect of sentence. Consequently, her Honour ordered that no evidence was to be adduced in respect of s 125A(1)(a) and (b) at any hearing on liability (at [78]).

53   Finally, the third charge states that (matter no 86634 of 2017, or “the third summons”) between 1 September and 2 November 2015, Leda contravened condition 41 of the Project Approval by carrying out bulk earthworks in an area outside the areas specified in condition 41 (that is, in an area to the east of the Cobaki Parkway, near the intersection of Sandy Lane).

  1. On 25 May 2018 Leda pleaded guilty to a fourth charge, namely, that it committed an offence against s 125(1) of the EPAA insofar as it commenced subdivision work (landfilling and associated earthworks in Precinct 2 of the Cobaki Estate) in accordance with a development consent without a construction certificate (“CC”) having been issued by the consent authority, the Tweed Shire Council, or an accredited certifier, contrary to s 81A(4)(a) of the EPAA (“the fourth summons”).

  2. It is uncontroversial that the four charges relate to the same course of conduct by Leda, namely, the development of land owned by it known as the Cobaki Estate, which is a major residential development located in the Tweed Shire.

  3. An additional charge was withdrawn by the prosecutor. That charge related to an alleged breach of conditions of the Project Approval concerning erosion and sediment controls (“the withdrawn charge”).

  4. The four charges were set down for a two week sentence hearing commencing on 4 June 2020.

  5. On 29 May 2020, by consent and with the leave of the Court, the prosecutor, the Secretary of the Department of Planning and Environment, filed an amended summons in respect of the second summons (2017/186632) (“the amended second summons”).

  6. Previously, the second summons had particularised that the offence was committed intentionally and was likely to cause significant harm to the environment pursuant to s 125A of the EPAA. That is, Leda had been charged with a Tier 1 offence under that Act.

  7. Section 125A(1) of the EPAA states as follows (emphasis added):

125A   Maximum penalties for offences against Act: Tier 1

(1)   This section applies to an offence against this Act under section 125 (1) if the prosecution establishes (to the criminal standard of proof):

(a)  that the offence was committed intentionally, and

(b)  that the offence:

(i)     caused or was likely to cause significant harm to the environment, or

(ii)     caused the death of or serious injury or illness to a person.

For this section to apply, the court attendance notice or application commencing the proceedings must allege that those factors apply to the commission of the offence.

  1. The amended second summons deleted the reference to s 125A of the EPAA and in lieu thereof charged the offence against s 125(1) of the EPAA as a Tier 2 offence under s 125B of the EPAA, namely, that the offence was committed recklessly or negligently. Section 125B states that:

125B   Maximum penalties for offences against Act: Tier 2

(1) This section applies to an offence against this Act under section 125 (1), other than an offence to which section 125A applies or an offence for which a tier 3 maximum penalty applies.

  1. On the first day of the hearing the prosecutor further informed the Court that it would not be making a submission that the harm (actual or potential) caused by the commission of the offences (all four of them) ought to be characterised as “significant” or “substantial”. The absence of this characterisation meant that whatever harm, if any, was caused by the commission of the offences, it could not amount to an aggravating feature pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”), a proposition that the prosecutor put expressly.

  2. The concession was properly made by the prosecutor, otherwise he risked infringing the principle in R v De Simoni ([1981] HCA 31; (1981) 147 CLR 383 at 389. A detailed consideration of the application of that principle in this Court may be found in Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [143]-[167], and the cases referred to thereat).

  3. Following the prosecutor’s opening, Leda made an application that either pursuant to s 10(1)(a) of the CSPA the first summons and the amended second summons be dismissed without conviction, or in the alternative, that upon conviction the proceedings the subject of those two summonses be disposed of without imposing any other penalty under s 10A(1) of the CSPA.

  4. Initially the application was made orally by Leda and was confined only to s 10(1)(a) of the CSPA. The Court ordered Leda to make the application formally.

  5. Upon doing so, the application was expanded to include both the first and second summons because, as Leda correctly notes, the second summons and its particulars and the first summons were in effect a single continuing offence (see Leda (No 4) at [49]), and to include, in the alternative, an order under s 10A of the CSPA.

Agreed Facts for the Purpose of the Sentencing Hearing

  1. In order to properly understand the arguments of the parties on the application, especially Leda’s submissions as to prejudice, it is necessary to return to the salient findings of fact and law made by the Court in Leda (No 4). These were helpfully summarised by the parties in a statement of agreed facts filed in the substantive sentence hearing. The following matters are therefore not in dispute (emphasis added):

Fact/Finding

Ref

1. The defendant (Leda) is the owner of the Cobaki Estate.

[58]

2. On 6 December 2010 concept approval was granted for the Cobaki Estate project (the Concept Approval), under former Part 3A of the Environmental Planning and Assessment Act 1979 (the EPAA).

[4]

3. Project Approval MP08_0200 (the Project Approval) for the subdivision of the Cobaki Estate into seven lots, staged bulk earthworks in the Central Open Space, roadworks, revegetation and rehabilitation works was granted to Leda on 28 February 2011.

[11]-[12]

4. The Project Approval was modified on 29 May 2013 (Mod 1), 3 April 2014 (Mod 2) and 13 February 2015 (Mod 3). All references below to the Project Approval below are to the Project Approval as modified.

[17]

5. Condition 21A was inserted into the Project Approval by Mod 1 and is in the following terms:

21A. Bulk Earthworks

a.    The Proponent shall submit the following plans and specifications with an application for construction certificate for the bulk earthworks in the borrow areas within Precincts 1 and 2:

i.    Natural and finished development levels (spot levels and contours) clearly detailed with a legible scale;

ii.    Sediment and erosion control plans;

iii.    Evidence that the works will be undertaken under geotechnical supervision by a registered Geotechnical Engineer;

iv.    All temporary and permanent batter slopes will be appropriately stabilised by way of grass seeding or hydromulch immediately after completion; and,

v.    An earthworks phasing diagram that defines maximum exposed areas.

b.   Bulk earthworks for the site are to be limited to a maximum exposed disturbed area (that has not been permanently vegetated) not exceeding a maximum of 5ha at any time to reduce exposed areas, unless otherwise approved by the Director-General.

c. Works are to be topsoiled, mulched and seeded immediately after completion to protect the exposed areas from water and wind erosion.

[23]

6. By letter dated 19 June 2013, a delegate of the Director-General authorised an increase in the maximum area for the purposes of Condition 21A from 5 to 5.59 ha.

[34]

7. The first construction certificate authorising the commencement of works under the Project Approval (CC 107) was issued to Leda on 21 June 2013 by Mr Michael Shaw, a private certifier.

[39]

8. On 3 April 2014, Condition 21A was modified by Mod 2. Relevantly, Condition 21A(a) was mofidied to read as follows:

“a.   The Proponent shall submit the following plans and specifications with an application for construction certificate for the bulk earthworks in the Borrow Areas within Precincts 1, 2, 9 and 11:”

[32]

9. At all relevant times, Leda was the person carrying out the development approved under the Project Approval for the purposes of s 75D of the EPAA.

[58]

10. The “site” for the purposes of Condition 21A(b) was confined to the areas the subject of Part Two of the Project approval, namely the Central Open Space (COS), Precincts 1 and 2, and subsequently under Mod 2, Precincts 9 and 11, and then under Mod 3 the Southern Special Purpose Precinct (SSPP).

[99], [125], [127]-[128]

11. The expression “bulk earthworks” in Condition 21A includes:

a) temporary stockpiles of earthen material excavated in bulk;

b) the movement of large quantities of earth in the course of cutting and filling; and

c) earth which is moved to create subsoil layers and earth which is moved to create the topsoild layer of a filled area.

[139]

[304]

[304]

12. The expression “maximum exposed disturbed area (that has not been permanently vegetated)” in Condition 21A(b) is to be interpreted in the following manner:

a) includes earth displaced by bulk Earthworks that is exposed to the atmosphere;

b) an “exposed disturbed area” includes both cutting and filling activities;

[150]

[152]

c) an “exposed disturbed area” is an area that has been exposed and disturbed by bulk earthworks until such time as it is “permanently vegetated”;

[153]

d) an area that is “permanently vegetated” will cease to be “exposed” if the vegetation is sufficiently well developed to provide ground cover do that the soil is no longer exposed to wind and rain and ceases to be an area that can potentially generate dust and sediment runoff;

[154]

e) what constitutes “permanently vegetated” will be a question of fact in all the circumstances;

[155]

f) the presence of newly sprouted or unsuccessfully established grass, or a sparse cover of weeds, is more likely to be included in the expression “exposed disturbed area” because the area is not “permanently vegetated”; and

[155]

g) the expression “maximum exposed disturbed area” in Condition 21A(b) includes any re-disturbed areas if the re-working was due to activity undertaken under the Project Approval.

[209]

13. Condition 21A(b) could not be circumvented by an assertion that works being undertaken in the areas the subject of the Project Approval were being undertaken pursuant to another consent.

[209]

14. The bulk earthworks carried out on the site during the charge periods specified in the first summons and second summons were undertaken in furtherance of the Project Approval and those earthworks were required to comply with in Condition 21A(b).

[280]

15. Leda exceeded the 5.59 ha limit in condition 21A(b). The estimated total area of the COS, SSPP and Precincts 1, 2, 9 and 11 exposed and disturbed since 21 June 2013 was:

a) as at 21 April 2014, between 47.6 and 63.91 ha;

b) as at 25 June 2014, between 52.6 and 65.65 ha;

c) as at 6 October 2014, between 55.4 and 85 ha;

d) as at 9 April 2015, between 54 and 71.42 ha;

e) as at 18 May 2016, between 46.9 and 68.27 ha; and

f) as at either 24 February or 7 March 2017, between 40.3 and 62.59 ha

[287]-[290]

16. Condition 41 of the Project Approval, as modified by Mod 3, is in the following terms:

“41. Earthworks – Limits of Approval

a. No bulk earthworks are to be undertaken outside of the central open space area (as defined in Schedule 1 Part C of this approval)

a. Notwithstanding a) above, bulk earthworks may also be carried out in Precincts 1, 2, 9 and 11 for the sole purpose of the winning of fill to be placed in the Central Open Space Area and the SSPP shown on bulk earthworks drawings specified in Condition 3.

b. Notwithstanding a.) and b.) above, fill material required for the central open space area sourced from elsewhere on/off the site requires separate development approval, unless otherwise approved by the Director-General.

c. Retaining walls and fire trail profiles identified on bulk earthworks drawings YCO229-1E1-ES04 (Rev D), YCO229-1E1-ES05 (Rev A), YCO229-1E1-ES06 (Rev A), YCO229-1E1-ES07 (Rev A) are not approved.

Note: Retaining wall heights and fire trail profiles within Precincts 1 and 2 shall be submitted to council for approval in accordance with the conditions of development approval DA10/0800.”

[24], [41]

17. The earthen mound east of Cobaki Parkway (the Earthen Mound) was a mound of topsoil which was created in connection with roadworks undertaken pursuant to a different consent around 2006. It long since naturally revegetated and had become part of the existing landscape surrounding the Project Approval area.

[307], [316]

18. In about September 2015, Leda took topsoil from the Earthen Mound and placed it in the SSPP for a structural purpose, namely, as preload in the SSPP.

[316]-[317]

19. The topsoil was moved from the Earthen Mound for an engineering purpose and not for the purpose of mere topsoiling and rehabilitation. In doing so, Condition 41 of the Project Approval was breached.

[317]

20. Removal of the Earthen Mound created two areas of disturbance: one approximately 1.2 ha in size, and the other approximately 0.5 ha in size. The works were outside of the approved work areas under Condition 41 of the Project Approval.

[310]

Asserted Injustice in the Prosecutor Having Abandoned a Case of “Significant Environmental Harm” in the Amended Second Summons

  1. A significant volume of expert evidence has been filed and served by the parties relevant to one of the fundamental factors to which the Court must have regard when sentencing for environmental crime, namely, the extent of any environmental harm caused by the commission of the offences in respect of which Leda has been found criminally liable.

  1. Leda submitted, however, that the prosecutor’s evidence as filed and served, especially its expert evidence, was unfair and prejudicial insofar as it was directed to:

  1. first, sediment and erosion controls - which was the subject of the withdrawn summons;

  2. second, the issue of whether there was “significant environmental harm” under s 125A of the EPAA – the subject of the second summons, which abandoned as a particular of the offending in the amended second summons; or

  3. third, both.

  1. Leda argued that if the prosecutor was permitted to proceed at the sentence hearing in reliance on the expert evidence as filed and served (see, for example, the affidavits of Mr Stewart McLachlan dated 19 May 2017 and 16 October 2017), which included evidence of Leda’s alleged inadequate sediment and erosion measures, this would transgress the De Simoni principle because its only relevance was to the withdrawn summons. That is, prejudicial evidence would be before the Court in respect of an offence with which Leda had not been charged.

  2. In addition, an irreparable consequence of the amendment to the second summons was that the expert evidence of the parties had been “infected” by prejudicial consideration of whether or not any environmental harm was “significant”. The second summons having now been amended, expert evidence was directed to the original version of the second summons and was now irrelevant.

  3. Leda contended that if, at the time of the preparation of its expert evidence, the question of “significant harm” was not required to be the central focus, its evidence would have had a different emphasis, that is, it would have been directed to the mere existence and extent (the “quantification of harm”) of any environmental harm, and not whether or not it was “significant”.

  4. Further, by reason of the prosecutor’s position of deferring until after the expert evidence is heard any assessment of what the environmental harm (simpliciter) occasioned by the commission of the offences is, all that is known is that there is harm that is neither “significant” nor “substantial”.

  5. Leda also raised the prospect that different pleas may have been entered to the first and second summonses had the second summons been initially presented in its now amended form and that it, therefore, lost the opportunity of entering pleas of guilty and obtaining a 25% discount on penalty. In light of the lesser penalty attached to a Tier 2 offence compared to a Tier 1 offence, the possibility of a different plea being entered cannot be foreclosed.

  6. Finally, Leda complained that costs have been wasted by it meeting a case now abandoned by the prosecutor. These costs comprise the expense incurred by reason of its experts opining on whether, if there was environmental harm, it was “significant” and of the hearing before Pain J in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114, the central focus of which was whether evidence was required to be adduced at the hearing on liability in respect of the statutory criteria set out in s 125A(1) of the EPAA.

  7. Therefore, having regard to the fact that the withdrawn summons had made the expert evidence with respect to erosion and sedimentation largely inadmissible; the extended period during which the second summons was extant prior to its amendment; the need for Leda to have qualified witnesses and adduced evidence concerning a withdrawn and an abandoned case, with attendant wasted costs; and the missed opportunity to enter different pleas to the first and second summonses, orders under either s 10(1)(a) or s 10A of the CSPA were warranted in respect of the first summons and the amended second summons.

  8. Leda tendered the following evidence in support of its application, almost none of which the Court was taken to in either its written or oral submissions:

Exhibit No

Evidence

1

affidavit of Mr Stewart McLachlan, sworn 19 May 2017

2

affidavit of Mr Stewart McLachlan, sworn 16 October 2017

3

Exhibit A to the affidavit of Mr Stewart McLachlan, sworn 16 October 2017, tabs 4(a), 7(c), 18, 19 and 20

4

affidavit of Mr Mathew Davis, affirmed 20 December 2017

5

annexure A to the affidavit of Mr Mathew Davis, affirmed 19 May 2017

6

affidavit of Mr Drew Bewsher, sworn 17 April 2020

7

affidavit of Dr Phillip Matthew, affirmed 24 April 2020

8

affidavit of Dr Daniel Martens, sworn 22 June 2018

9

affidavit of Mr Damon Roddis, affirmed 29 April 2020

10

affidavit of Mr James Warren, sworn 30 May 2018

11

affidavit of Mr James Warren, sworn 1 May 2020

Sections 10 and 10A of the CSPA

  1. Sections 10(1)(a) of the CSPA provides that:

10   Dismissal of charges and conditional discharge of offender

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

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

  1. Pursuant to s 10(3) of that Act the Court must take into account the following factors in deciding whether or not to make an order under s 10(1) (emphasis added):

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

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

(b)  the trivial nature of the offence,

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

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

  1. The following legal principles have been distilled from the authorities concerning the application of s 10(1)(a) of the CSPA (see the summary in Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45; (2016) 217 LGERA 332 at [275]-[279]).

  2. From the outset it should be noted that there is no prohibition against the application of s 10 to a corporate offender (see s 21 of the Interpretation Act 1987 and the definition of “person”: Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51; (2013) 199 LGERA 1 at [105]).

  3. The factors in s 10(3) are all but mandatory considerations. In Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 Basten JA relevantly described the structure of s 10 as follows (at [8] and [10]-[11]):

8 … Section 10 is relevantly broken into three parts, the first conferring a power to make an order of a particular kind; the second prescribing that the order “may be made” if the court is satisfied of certain matters, although not stating that the court must be so satisfied to make such an order, and the third identifying factors which, in considering whether to make such an order, the court “is to have regard to”. While the logic of the new structure is apparent, its effect is obscured.

…

10    Further, to say that a court “is to have regard to” certain factors (see sub-s (3)), suggests that these are mandatory considerations. However, they are really conclusions reached by the court in the course of its considerations. As is clear from s 4 of the South Australian Act, a critical question for the court may be whether the nature of the offence can properly be described as “trivial” and whether the circumstances in which it was committed were in fact “extenuating circumstances”. Properly understood, the court is not to “have regard to” those factors, but to determine whether those factors exist. Finally, it seems that these are not in truth mandatory considerations, because par (d) includes “any other matter that the court thinks proper to consider”. It is not meaningful to make that a mandatory consideration. Again the purpose is to ensure the court considers the full range of factors it considers relevant.

11 Despite its form, s 10 should be understood as having the same general effect as s 4 of the South Australian Act. That is, it will not be expedient for the Court to release a person guilty of an offence without proceeding to conviction unless one or more of the factors set out in sub-s (3)(a), (b) or (c) is satisfied or there are other circumstances, not clearly fitting within those characteristics, which would justify such a course. Thus, a court now has a broader discretionary power than in the past; relevantly for the question of jurisdictional error, there is no statement of impermissible considerations.

  1. The factors to which the Court “is to have regard to” are not exhaustive (R v Paris [2001] NSWCCA 83 at [42]) and are considered to be disjunctive in their operation (Paris at [42]).

  2. An order under s 10(1) generally applies to offences that are considered to be trivial in nature, however, the converse is equally true (R v Piccin (No 2) [2001] NSWCCA 323 at [25]; Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312 at [38] and Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [114]).

  3. An order under s 10 (or its former statutory incarnation, s 556A of the Crimes Act 1900) is usually "rare" in the case of environmental offences, including offences concerning a breach of planning laws (Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22 at 23; Environment Protection Authority v Attard [2000] NSWCCA 242 at [5]; Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 at [165]-[169]; Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; 122 LGERA 89 at [35]; Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 3) [2005] NSWLEC 423 at [24]; Holroyd City Council v El-Khouri [2008] NSWLEC 83 at [34] and Terrey [2011] NSWLEC 141 at [109]).

  4. Nonetheless, the environmental and planning nature of the offence is no bar to the application of s 10(1) of the CSPA (El-Khouri at [34]; Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 at [47]-[51] and Parramatta City Council v Cheng [2010] NSWLEC 94 at [41]-[45]).

  5. Having said this, the circumstances in which a s 10(1) order is appropriate are considered to be limited where the environmental offence is one of strict liability (Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [70]-[71] and Terrey at [110]).

  6. But the fact that the offences in question are of strict liability similarly does not preclude an order being made under s 10 of the CSPA (Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88 at [139]; Thorneloe at [171]; Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 at [149]-[153] and Lavorato v The Queen [2012] NSWCCA 61; (2012) 82 NSWLR 568 at [126]).

  7. In relation to the application of s 10A of the CSPA, there is no statutory equivalent to the matters set out in s 10(3) of that Act, however, the learned author Mr Stephen Odgers SC has opined that “utilisation of this option would be rare and for unusual cases” (Sentence (4th ed, 2018, Longueville Media Pty Ltd), [5.11]). For example, such an order was made in Bikhit v The Queen [2007] NSWCCA 202, where it was doubted that any offence was disclosed on the evidence but the appellant nevertheless maintained his plea of guilty.

The Application Must be Dismissed

  1. There are several reasons why Leda’s application for an order under either s 10(1)(a) or s 10A of the CSPA must be dismissed.

  2. First, as the prosecutor correctly asserts, at this nascent stage of the sentencing proceedings the application is premature. This is because s 21A(1) of the CSPA requires the Court to take into account a number of factors in determining the imposition of an appropriate sentence, including (c):

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

  1. The Court must therefore take into account the relative seriousness of the offence. In sentence proceedings for environmental crime this includes an assessment of any actual or potential environmental harm caused by the commission of the offence, a fundamental element of which includes the extent of that harm.

  2. In the present case, for the reasons explained immediately below, this is likely to include evidence of the sediment and erosion controls in place at the time of the commission of the offences. It is axiomatic that the more efficacious the sediment and erosion controls, the less likelihood that actual or potential environmental harm was, or could have been, caused by the commission of the offences. The evidence has the capacity to result in a finding that limited environmental harm was caused, or could have been caused.

  3. Insofar as Leda objects to all of the prosecutor’s evidence regarding erosion and sediment controls in the affidavits of Mr Stewart McLachlan, Mr Brett Nudd and Mr Christopher Schultz, this evidence is relevant to the potential effect of non-compliance with condition 21A(b) of the Project Approval. This is because limiting the extent of any disturbed area reduces the risk of erosion, sedimentation and dust dispersion. It may be inferred that the erosion and sediment control conditions contained in the Project Approval were predicated upon the basis that only 5.59 ha was exposed at any one time in conformity with that condition. Evidence which shows actual movement of sediment (for example, as contained in the affidavit of Mr Mathew Davis affirmed 20 December 2017, the expert ecologist engaged by the prosecutor) will be directly relevant to the extent of any actual or potential harm occasioned by the commission of the offences.

  4. In any event, to take evidence of erosion and sedimentation into account as an aspect of an assessment of the extent of any environmental harm caused by the commission of the offences will not, of itself, breach the principle in De Simoni, provided that its consideration is limited to an overall assessment of the objective seriousness of the offence (see the discussion and authorities referred to in Sydney Water Corporation cited above).

  5. Moreover, in assessing the objective seriousness of the offending, in addition to the objective harmfulness of Leda’s actions, the Court may also have regard to:

  1. the foreseeability of risk of harm to the environment;

  2. the practical measures available to avoid harm to the environment; and

  3. Leda’s control over the causes of any harm to the environment.

  1. The prosecutor is entitled to rely upon evidence of these factors. This entitlement is not affected by whether the offence charged is a Tier 1 or Tier 2 offence. Relying on this evidence will not inevitably transgress the principle in De Simoni.

  2. Not dissimilarly, with respect to any order made under s 10(1)(a) of the CSPA, s 10(3) requires the Court to have regard to, among other things, “(b) the trivial nature of the offence”. In order to make such an assessment the Court requires recourse to expert evidence as to the extent and nature of the harm caused by the commission of the offences. In the absence of this evidence, the Court is left with the facts as found at [287]-[290] of Leda (No 4) (as agreed at paragraph 15 of the agreed statement of facts). This arguably establishes that Leda breached the 5.59 ha limit in condition 21A(b) of the Project Approval, if the test is quantitative, in an egregious – that is, not trivial – manner.

  3. Second, as the affidavit evidence of Ms Jennifer Coburn (a solicitor employed by the prosecutor) sworn 4 June 2020 establishes, none of Mr Mathew Davis (ecologist), Mr Andrew McLeod (environmental scientist), or Mr Aleksandar Todoroski (air scientist) (all experts engaged by the prosecutor) were requested to opine on whether there had been “significant” or “substantial” harm caused by Leda’s offending. That some of the experts described the harm in this way can therefore be divorced from the particulars of the original second summons.

  4. The prosecutor’s evidence was not, contrary to Leda’s submission, “directed” to the issue of significant harm. To the extent that adjectives such as “significant” or “substantial” have been used by the prosecutor’s experts to describe the harm caused by Leda, this is no more than a convenient summary of the extent of the actual or likely environmental harm that the particular expert has assessed.

  5. Leda’s experts would in any case have had to confront and meet the conclusions expressed by the prosecutor’s expert witnesses (for example, Mr Davis, who concluded that the harm was “significant”). It was therefore not accurate to submit, as Leda did, that it has misdirected its expert witnesses by reason of the now abandoned particulars to the second summons (a submission that ignores the existence of the first and third summons).

  6. In the result, Leda’s experts have concluded that there was no or limited actual or likely environmental harm caused by the commission of the offences (see for example, Mr Damon Roddis (air scientist), Mr James Warren (ecologist), and Mr Drew Bewsher (hydrologist)). This evidence is neither wasted nor “tainted”, but is directly relevant to the more general question of the objective seriousness of the offending.

  7. Furthermore, Leda did not seek to demonstrate in any way how the “evidence adduced would have been materially different” as a consequence of the amendment to the second summons.

  8. Third, the injustice that Leda contends that it will suffer must be viewed in its proper context, namely, that the prosecutor has elected to proceed by way of particulars under a provision that results in a lesser maximum penalty but which does not traverse the findings of liability. The amendment effected to the second summons did not result in Leda being charged with a different offence, on the contrary, s 125A(1) of the EPAA applies to “an offence…under section 125(1)”. The offence with which Leda has been found guilty as charged in the amended second summons is the same offence as that contained in the original second summons.

  9. Consequently, there was nothing preventing Leda from pleading guilty to the first or second summons at any time. The offences with which Leda has been charged have remained constant. A plea of guilty is no more than an acceptance by the defendant of the elements of the offence; not to the particulars of that offence.

  10. If there was any ambiguity as to the elements of the offence as charged in the second summons, this was clarified by Pain J in Leda (at [62]):

62 The matters identified in s 125A(1) are essentially aggravating factors which are relevant to sentence. When viewed in that way this approach can be equated with s 241 of the POEO Act which cites matters to be considered in imposing penalty as matters relevant to sentence.

  1. There was no impediment to Leda pleading guilty to the offence against s 125(1) of the EPAA in the second summons after Leda was delivered. Indeed at no point prior to the handing down of Leda (No 4) did Leda lose the opportunity of pleading guilty to the charges in the first and second summons, thereby gaining the benefit of some or all of the available 25% discount on penalty.

  2. That the maximum penalty to which Leda is subject to decreased by reason of the amendment to the second summons did not result in Leda being denied the opportunity of pleading guilty to the charge. It was always open to Leda to plead guilty to the offence in the first and second summons and for a disputed facts hearing to follow those pleas (especially given that the offences are all strict liability offences). Alternatively Leda could have entered into a plea negotiation. Leda elected to do neither and to plead not guilty, as was its right.

  3. In any event, there is no evidence whatsoever to suggest that Leda would have changed its plea had the second summons originally charged Leda with a Tier 2 offence. Given that the onus is on the defendant to establish that an order under either s 10(1)(a) or s 10A is appropriate, in my view, such evidence is necessary at this preliminary stage of the sentence hearing.

  4. Moreover, while there would have been a substantial savings in time if Leda had pleaded guilty to the offences charged in the first and second summons, given the not guilty plea with respect to the third summons, a separate hearing on liability would nevertheless have been required prior to a hearing on sentence dealing with all four charges. Again, there was no evidence before the Court to suggest that Leda would have countenanced a different plea in respect of the third summons consequent upon it being charged with a Tier 2 offence in the second summons.

  1. Fourth, while it is almost invariable that a defendant will be ordered to pay the prosecutor’s costs upon conviction (or an order under s 10 of the CSPA) in criminal proceedings in Class 5 of the Court’s jurisdiction pursuant to s 257B of the Criminal Procedure Act 1986 (“the CPA”), the Court nevertheless retains a discretion under that provision whether or not to make the order (“a court may”). Thus, for example, in circumstances where the hearing before Pain J in Leda has been rendered otiose by reason of the amendment to the second summons and wasted costs have been incurred to meet a case now abandoned by the prosecutor, an argument for the exercise of the Court’s discretion under s 257B of the CPA that takes these matters into account may be compelling. It is noted in this regard that the prosecutor conceded that it ought not be awarded the costs for the proceedings before her Honour.

  2. Although, as Leda correctly observed, the terms of s 257C of the CPA render it all but impossible for it to obtain the benefit of an order for costs against the prosecutor in the absence of either the first or the amended second summons having been dismissed or withdrawn, it remains the case that the payment of the prosecutor’s costs by a defendant is a matter that the Court must take into account in the determination of the appropriate penalty for the four offences, especially where that penalty will be a monetary impost.

  3. For all these reasons, therefore, the notice of motion must be dismissed. Having said this, there is nothing precluding Leda from making another application for orders under either s 10(1)(a) or s 10A of the CSPA at the conclusion of the sentence hearing.

Orders

  1. In conformity with the reasons give above, Leda’s notice of motion is dismissed.

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Decision last updated: 09 June 2020

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Cases Cited

23

Statutory Material Cited

5

Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58
Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114
R v De Simoni [1981] HCA 31