Secretary, Department of Planning and Environment v Shoalhaven Starches Pty Ltd

[2018] NSWLEC 23

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Secretary, Department of Planning and Environment v Shoalhaven Starches Pty Ltd [2018] NSWLEC 23
Hearing dates:	7 February 2018
Date of orders:	02 March 2018
Decision date:	02 March 2018
Jurisdiction:	Class 5
Before:	Moore J
Decision:	See orders at [175] to [177]
Catchwords:	ENVIRONMENT AND PLANNING - prosecutions for failure to disclose political donations - disclosure required when making applications for modifications to approved development - five charges - early guilty pleas - for four charges, failure to disclose multiple donations - disclosure made of corporate donations but not of reportable donations made by a director SENTENCING - characterisation of offences - failures due to reckless indifference or negligence of the Defendant’s company secretary to be regarded as aggravating factor - Defendant’s prior environmental convictions not a factor of aggravation - very limited subjective factors in Defendant’s favour - 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 one of the offences - legislative prohibition on retrospective application of increased penalty - publication order made with respect to four of the five charges CRIMINAL PROCEDURE - Prosecutor’s application for moiety of fines imposed - appropriate to make an order in present circumstances
Legislation Cited:	Corporations Act 2001 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986, s 257B Election Funding Amendment (Political Donations and Expenditure) Bill 2008 Election Funding, Expenditure and Disclosures Act 1981 Environmental Planning and Assessment Act 1979, ss 125(1), 147 Evidence Act 1995, ss 59, 66 and 69 Fines Act 1996 Local Government and Planning Legislation Amendment (Political Donations) Bill 2008 Protection of the Environment Operations Act 1995
Cases Cited:	Anderson v R (1993) 177 CLR 520 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Director-General, Department of Planning and Infrastructure v Aston Coal 2 Pty Ltd (2013) 199 LGERA 176; [2013] NSWLEC 188 Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158 EPA v Barnes [2006] NSWCCA 246 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 AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 Secretary, Department of Planning and Environment v T W Perram & Partners Pty Limited [2017] NSWLEC 170 The Queen v Kilic [2016] HCA 48
Category:	Principal judgment
Parties:	Secretary, Department of Planning and Environment (Prosecutor) Shoalhaven Starches Pty Ltd (Defendant)
Representation:	Counsel: Ms I King, barrister (Prosecutor) Mr M Astill, barrister (Defendant)   Solicitors: Department of Planning and Environment (Prosecutor) Ash Street Lawyers (Defendant)
File Number(s):	187153; 187155 to 187158 of 2017
Publication restriction:	No

TABLE OF CONTENTS

The requirement for political donation disclosure

The offences

Introduction

Time period covered by the donations

The Statement of Agreed Facts

Introduction

The factual basis for each of the offences charged

The Company’s guilty pleas

The legislative framework

The availability of the power to make publication orders

The evidence

The sentencing framework

The Crimes (Sentencing Procedure) Act 1999

Plath v Rawson

Relevant objective and subjective factors

Introduction

Factors for consideration

Introduction

Objective factors

The maximum penalty

Circumstances of aggravation

Introduction

The Company’s prior convictions

A series of criminal acts?

Financial gain

The Company’s subjective factors

The Company’s prior offences

The Company as a corporate citizen

Likelihood of reoffending - specific deterrence

Contrition and remorse

The Company's pleas of guilty

Assistance to the Prosecutor

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

Other potentially relevant cases

The appropriate starting sentences

Accumulation and totality

Introduction

Attribution of penalty to individual offences

Costs

Publication orders

Introduction

The terms of a publication notice

Publications to be included

A moiety of the fines to the Prosecutor?

Orders

In Matter No 187153 of 2017:

In Matter No 187155 of 2017:

In Matter No 187156 of 2017:

In Matter No 187157 of 2017:

In Matter No 187158 of 2017:

Appendix 1

Appendix 2

Appendix 3

Appendix 4

JUDGMENT

The requirement for political donation disclosure

1. HIS HONOUR: In 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 (my AGL decision), I set out, at [1] and [2], the legislative history and statutory provisions concerning the requirements for mandatory political donation disclosure in the context of applications for development approval.

2. I quoted the relevant remarks made by the then Attorney General, on 18 June 2008, when he 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. It is not necessary to reproduce those remarks for the purpose of my decisions in these five prosecutions of Shoalhaven Starches Pty Ltd (the Company), but the sentiments expressed remain valid.

3. The Bills passed and the relevant amendment to the 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 offences

Introduction

4. The Company has pleaded guilty to five failures to make complete disclosure of political donations in breach of the statutory requirements. Although the offences were committed by the Company, as set out later the donations were not made by the Company but by one of its directors, Mr John Thomas Honan Junior (Mr Honan) - however, there was an obligation, in each instance, for the Company to disclose the donations for the reason earlier set out drawn from the Election Funding, Expenditure and Disclosures Act 1981 (the EFED Act).

Time period covered by the donations

5. As can be seen from that which is set out below, failures to disclose the donations giving rise to these offences were all made after the increase in penalties dealt with in my AGL decision and the earlier decision of Craig J in Director-General, Department of Planning and Infrastructure v Aston Coal 2 Pty Ltd (2013) 199 LGERA 176; [2013] NSWLEC 188 (Aston Coal). Although the donations were made between January 2013 and February 2016, the failures to disclose span the period of project modification applications made between 25 February 2015 and 21 October 2016. The total amount of the disclosed donations that were made by the Company during this period was $847,372. As agreed, the total of the undisclosed contributions was $23,355 (although this appears to ignore two donations for the year ending 30 June 2015, totalling an amount of $800, a matter not relevant in these proceedings).

The Statement of Agreed Facts

Introduction

6. The Prosecutor and the Company have settled a comparatively brief, but nonetheless comprehensive, Statement of Agreed Facts (SOAF) 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.

The factual basis for each of the offences charged

7. The SOAF sets out details of Mr Honan’s 12 donations that have founded the five offences with which the Company has been charged. The following is taken from the SOAF and provides details of the offences and relevant matters giving rise to them:

Background to Planning Applications

1 On 28 January 2009, the Minister for Planning granted Project Approval in respect of Major Project Application MP 06_0228 for the Shoalhaven Starches Expansion Project (MP Approval) under former Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) (Act). The MP Approval relates to the Defendant’s factory in Bomaderry on the NSW South Coast.

2   The Bomaderry factory processes grain, flour and mill feed into starch, gluten and glucose for the food, beverage and paper industries.

3   The Shoalhaven Starches Expansion Project involved modifications to existing odour and wastewater controls for both the factory and the environmental farm, increasing the ethanol production capacity at the Shoalhaven Starches factory site to meet the expected increase in demand for ethanol arising from the NSW Government’s ethanol mandate, additional odour and wastewater controls consistent with the increased capacity, and ancillary works including those for access, transport and visual impact.

John Thomas Honan Junior Donations

4   In the financial year ending 30 June 2013, Mr John Thomas Honan Junior, a director of the Defendant, made the following donations:

(1)   donation to the NSW Liberal Party of $400 on 18 March 2013;

(2)   donation to the NSW Liberal Party of $200 on 18 March 2013

(3)   donation to the NSW Liberal Party of $2,160 on 18 March 2013;

(4)   donation to the NSW National Party of $5,300 on 4 April 2013;

(5)   donation to the NSW Country Labor Party of $2,000 on 24 April 2013; and

(6)   donation to the NSW Australian Labor Party of $1,000 on 24 April 2013,

(the 2013 Donations)

5   In the financial year ending 30 June 2014 Mr John Thomas Honan Junior, made the following donations:

(1)   donation to the NSW Liberal Party of $95 on 31 December 2013;

(2)   donation to the NSW National Party of $1,100 on 31 May 2014; and

(3)   donation to the NW Liberal Party of $5,000 on 30 June 2014,

(the 2014 Donations).

6   In the financial year ending 30 June 2015, Mr John Thomas Honan Junior, a director of the Defendant, made the following donations:

(1)   donation to the NSW Liberal Party of $1,000 on 7 July 2014;

(2)   donation to the NSW Liberal Party of $4,000 on 13 August 2014; and

(3)   donation to the NSW Australian Labor Party of $1,100 on 20 November 2014,

(the 2015 Donations).

7 Each of the 2013 Donations, 2014 Donations and 2015 Donations constituted a reportable political donation within the meaning of Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 (EFEDA) and section 147(2) of the Act.

Corporate Structure of the Defendant

8   At all relevant times, Mr John Thomas Honan Junior was a director of the Defendant.

9   At all relevant times, Mr John Thomas Honan Junior was an indirect shareholder of the Defendant. Attached is a diagram illustrating the corporate structure for both before and after 20 September 2016.

10 By virtue of the reasons set out in paragraph 8 and 9 above, at all relevant times, Mr John Thomas Honan Junior had a financial interest in the MOD 5, MOD 7, MOD 8, MOD 9 and MOD 10 applications within the meaning of section 147(3)(a) of the Act.

2017/187153 - MOD 5 Application - Charge 1

11   On or about 25 February 2015, the Defendant made an application to modify the MP Approval (MOD 5 Application). The MOD 5 Application relates to changes to the design, footprint and odour controls on the dried distillers grain pelletising plant that had been previously approved under the MP Approval.

12   The MOD 5 Application was accompanied by a political donations disclosure statement which disclosed donations by the “Manildra Group of Companies”:

13   The MOD 5 Application political donations disclosure statement did not disclose the 2013 Donations, 2014 Donations and 2015 Donations made by Mr John Thomas Honan Junior, totalling $23,355.

14 The Minister was the approval authority for the MP Approval and was consequently the approval authority for the MOD 5 Application. However, as some reportable political donations were disclosed the MOD 5 Application was determined by the Planning Assessment Commission in accordance with the Minister’s Instrument of Delegation dated 14 September 2011.

2017/187155 - MOD 7 Application - Charge 2

15   On or about 6 November 2015, the Defendant made an application to modify the MP Approval (MOD 7 Application). The MOD 7 Application relates to the relocation and changes to the footprint of Starch Dryer No. 5 that had been previously approved by the MP Approval.

16   The MOD 7 Application was accompanied by a political donations disclosure statement which disclosed donations by “the Manildra Group.”..

17   The MOD 7 Application political donations disclosure statement did not disclose the 2014 Donations and the 2015 Donations which were required to be disclosed, totalling $12,295.

18 The Minister was the approval authority for the MP Approval and was consequently the approval authority for the MOD 7 Application. However, as some reportable political donations were disclosed the MOD 7 Application was determined by the Planning Assessment Commission in accordance with the Minister’s Instrument of Delegation dated 14 September 2011.

2017/187156 - MOD 8 Application - Charge 3

19   On or about 12 November 2015, the Defendant made an application to modify the MP Approval (Mod 8 Application). The MOD 8 Application relates to alterations to an existing flour mill that had been previously approved by the MP Approval.

20   The MOD 8 Application was accompanied by a political donations disclosure statement which disclosed donations by the “Manildra Group.”.

21   The MOD 8 Application political donations disclosure statement did not disclose the 2014 Donations and the 2015 Donations which were required to be disclosed, totalling $12,295.

22 The Minister was the approval authority for the MP Approval and was consequently the approval authority for the MOD 8 Application. However, as some reportable political donations were disclosed the MOD 8 Application was determined by the Planning Assessment Commission in accordance with the Minister’s Instrument of Delegation dated 14 September 2011.

2017/187157 - MOD 9 Application - Charge 4

23   On or about 18 March 2016, the Defendant made an application to modify the MP Approval (Mod 9 Application). The MOD 9 Application relates to changes to a packing plant that had been previously approved by the MP Approval.

24   The MOD 9 Application was accompanied by a political donations disclosure statement which disclosed donations by the “Manildra Group”..

25   The MOD 9 Application political donations disclosure statement did not disclose the 2014 Donations and 2015 Donations. The donation of $95 to NSW Liberal Party dated 31 December 2013 was not required to be disclosed because it occurred more than 2 years prior to the MOD 9 Application.

26   The total donations not disclosed by the MOD 9 political disclosure statement which were required be disclosed totalled $12,200.

27 The Minister was the approval authority for the MP Approval and was consequently the approval authority for the MOD 9 Application. However, as some reportable political donations were disclosed the MOD 9 Application was determined by the Planning Assessment Commission in accordance with the Minister’s Instrument of Delegation dated 14 September 2011.

2017/187158 - MOD 10 Application - Charge 5

28   On or about 21 October 2016, the Defendant made an application to modify the MP Approval (Mod 10 Application). The MOD 10 Application relates the construction of an additional new flour mill at the Bomaderry site.

29   The MOD 10 Application was accompanied by a political donations disclosure statement which disclosed donations by the “Manildra Group”.

30   The MOD 10 Application political donations disclosure statement did not disclose the donation made by Mr John Thomas Honan Junior to the NSW Australian Labour Party of $1,100 on 20 November 2014 which was required to be disclosed.

31 The Minister was the approval authority for the MP Approval and was consequently the approval authority for the MOD 10 Application. However, as reportable political donation were disclosed the MOD 10 Application was determined by the Planning Assessment Commission in accordance with the Minister’s Instrument of Delegation dated 14 September 2011.

Summary of Donations Disclosure

31   The following table sets out the charges and summarises the donations not disclosed.

Charge	Donations not disclosed	Date Modification Application Submitted
1 - MOD 5	12 donations/$23,355	25 Feb 2015
2 - MOD 7	6 donations/$12,295	6 Nov 2015
3 - MOD 8	6 donations/$12,295	12 Nov 2015
4 - MOD 9	5 donations/$12,200	18 Mar 2016
5 - MOD 10	1 donation/$1,100	21 Oct 2016

The Company’s guilty pleas

8. The Company pleaded guilty to each offence on 25 August 2017.

9. 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) is to be allowed for these guilty pleas in the sentencing calculation.

10. 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 SOAF, that the Company has appropriately entered guilty pleas to each of these offences and that, as a consequence, convictions should be recorded in each instance.

The legislative framework

11. The EP&A Act deals with “Disclosure of political donations and gifts” in s 147, which creates the requirement for disclosure of donations of the type made by the Company and of donations of the type made by Mr Honan of the type which have given rise to these prosecutions.

12. 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.

13. 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.

14. The maximum penalties for such an offence are to be derived by reference to 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.

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

16. The maximum penalties set by s 96H(2) of the EFED Act were doubled in 2014 - a factor irrelevant in my AGL decision but here applicable to these five offences. The applicable maximum penalties applying now are 400 penalty units ($44,000) or imprisonment for 24 months, or both. Given that the Company cannot be imprisoned, only the maximum monetary penalty applies for consideration with respect to each offence.

The availability of the power to make publication orders

17. From 15 July 2015, a relevant further 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 any conviction for a breach of the EP&A 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.

18. The importation of Pt 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,

19. In my AGL decision, I explained, between [118] and [133], why the power to make such orders was not available for offences committed prior to 15 July 2015. There is no doubt that these provisions apply to offences committed after that date.

20. Relevant to these five prosecutions, however, one of them (Matter 187153 of 2017) relates to a project modification application made on or about 25 February 2015 and the publication order provision cannot apply to this prosecution. All four other prosecutions relate to project modification applications made well after 15 July 2015. As a consequence, the power to make publication orders is available for the latter four of these offences.

The evidence

21. Two volumes of an agreed bundle of documents; the SOAF and an extract from the records of ASIC concerning the Company comprised the totality of the documentary evidence.

22. An affidavit by Mr Bratby, the Company Secretary of entities within the Manildra Group (including the Company) was read. Mr Bratby was required for cross-examination. A number of matters arising from his affidavit, or from his oral evidence, require later consideration.

The sentencing framework

The Crimes (Sentencing Procedure) Act 1999

23. The Crimes (Sentencing Procedure) Act 1999 (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.

24. 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

25. In Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 (Rawson), 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:

• the nature of the offence;

• the maximum penalties for the offence;

• the harm caused to the environment by commission of the offence;

• the state of mind of the offender in committing the offence;

• the offender's reasons for committing the offence;

• the foreseeable risk of harm to the environment by commission of the offence;

• the practical measures to avoid harm to the environment; and

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

26. In 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:

• lack of prior criminality;

• prior good character;

• plea of guilty to the offences;

• contrition and remorse; and

• assistance to authorities.

27. 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.

28. I now turn to address the relevant factors as applicable to these offences and to the Company.

Relevant objective and subjective factors

Introduction

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

Factors for consideration

Introduction

30. 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 the Company. 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 the Company in this context.

Objective factors

The maximum penalty

31. The maximum penalty is significant in determining the objective seriousness of the offence: 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 (Camilleri’s Stock Feeds).

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

33. The first prosecution for breaches of this nature was dealt with by Craig J in Aston Coal. His Honour considered, at [38] to [40], what should be made of the maximum penalty regime then applicable. His Honour said:

38 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).

39 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.

40 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.

34. In my AGL decision, I adopted the view expressed by Craig J, in [40] above, concerning the gravity with which any breach of s 147 is to be regarded. It is to be observed that, in Secretary, Department of Planning and Environment v T W Perram & Partners Pty Limited [2017] NSWLEC 170, Pain J was faced with quite different circumstances (ones which caused her Honour to utilise the power available to her pursuant to s 10 of the Sentencing Procedure Act - power not suggested as appropriate in these circumstances). Pain J’s decision is the third of the set of earlier decisions concerning s 147.

Circumstances of aggravation

Introduction

35. The Prosecutor has submitted (Prosecutor’s written submissions, page 8, paragraphs 18 to 19) that the conduct of the Company was reckless or negligent so as to be an aggravating factor (R v Olbrich 199 CLR 270; [1999] HCA 54 (Olbrich) at [27]).

36. A corporate structure diagram (reproduced at Appendix 3 with shareholding details removed by me - as I advised the Prosecutor and Mr Astill would be the case) shows the holding structure within which the Company falls. All the corporate entities shown in this diagram (with the exception of Dick Honan Holdings Pty Ltd (Holdings)) are members of the Manildra group of companies. From the diagram in Appendix 3, it is to be observed that Mr Honan, who is a director of the Company, is also known as "Dick Honan" and Holdings derives its name from that fact.

37. Mr Bratby is the Company Secretary of all of the entities in the Manildra group of companies. Mr Bratby is not the Company Secretary of Holdings and, in his oral evidence, he acknowledged that that he was entirely unaware of any information concerning the internal financial operation of Holdings.

38. Mr Bratby also gave oral evidence that there were a total of some 25 corporate entities in the Manildra group of companies. Mr John Gary Honan, who is also a director of the Company, is Mr Honan’s son.

39. During his cross-examination, Mr Bratby was asked about the election funding returns which he had prepared concerning the reportable political donations made by Mr Honan that gave rise to charges. Those disclosure statements, handwritten and signed by Mr Bratby, were in evidence as part of the agreed documents.

40. A blank reproduction of the “Political Donations Disclosure Statement to Minister or the Director-General” was contained in the agreed documents tendered in the proceedings. The blank disclosure statement comprised three pages. Page “1” contained a section of explanatory information, including information about disclosure requirements, and page “2” set out a glossary of terms. Page “3” comprised the form to be completed and signed - the form providing space to list donations required to be disclosed. A similar but not entirely identical set of documents applies with respect to development applications made to a local council (although a copy of these was also amongst the agreed documents, they do not require further consideration).

41. Each modification application was accompanied by disclosure statement which disclosed donations made by the Manildra Group.

42. The modification application relating to Charge 1 was accompanied only by page “3” of the disclosure statement, with two following pages continuing to list the donations.

43. Each of the further modification applications (relating to Charges 2, 3, 4, and 5) was accompanied by pages “1”, “2” and “3” of the Political Donations Disclosure Statement, with following pages continuing to list the donations.

44. Mr Bratby was cross-examined about the extent of the attention which he had directed to these forms, particularly to the extent which he had had regard (which he had not had at all) to a number of the matters set out on the page "3" documents and the fact that each of the page "3" documents referred explicitly to explanatory material set out on pages “1” and “2” of the suite of three pages that comprised the political donations disclosure information package relating to political donation disclosure where development proposals were made to the Minister or the Director-General of the Department. Mr Bratby was taken to the Political Donations Disclosure Statement relating to the modification application concerning Charge 1 (Transcript, 7 February 2018, page 17, lines 18 to 43):

PROSECUTOR

Q. …The first sentence under the heading "Political disclosure statement to the Minister or the Director General” says that you should see page 1 for details and then the first sentence under "Reportable political donations made by people person making this declaration or any other relevant persons" says, “See glossary on page 2”. And there is a page 3 notation on the bottom right hand corner, so this appears to be an incomplete document?

A. Yes, as in pages 1 and 2 aren't attached.

Q. Yes?

A. Yes.

Q. At the time that you completed this document, did you notice that pages 1 and 2 weren't there?

A. I think I was not given pages 1 and 2.

Q. But did you make any inquiries about the existence or otherwise of pages 1 and 2?

A. I think this was the very first one because I just threw everything at it and all I was inquired was what donations had we made, send them to us. That was pretty much as vague as that.

Q. You knew at the time that you completed this form that John Thomas Honan or Dick Honan had made political donations but it didn't occur to you that they might need to be disclosed on this form?

A. No.

45. The Prosecutor then took Mr Bratby to the disclosure statement relating to Charge 2 (Transcript, 7 February 2018, page 18, line 41 to page 19, line 26):

Q. When you completed the form behind tab 11, did you read it carefully?

A. I believe so.

Q. In particular, on page 2 it says, "A person has a financial interest in a relevant planning application if", and subparagraph (c), "The person is associated with a person referred to in paragraph (a) or (b) and is likely to obtain a financial gain if a development that would be authorised by the application is authorised or carried out (other than a gain merely as a shareholder in a company listed on a stock exchange)". You read that carefully?

A. Yes.

Q. You knew at that stage that Shoalhaven Starches Pty Ltd wasn't listed on a stock exchange?

A. Yes.

Q. And you knew that John Dick Honan had made political donations?

A. Yes.

Q. And you knew that he was associated - sorry, I'll stop that. I withdraw that, I'll approach it from a different angle. You understand as a legal concept the concept of association that a director may be associated with a company?

A. Yes.

Q. You also understand through your knowledge of the corporate structure of the Manildra Group that Dick Honan is an ultimate shareholder of the group and receives dividends as a result of the activities of the group?

A. Yes.

Q. So you knew that Dick Honan was likely to obtain a financial gain if the development that was authorised by the application was authorised or carried out?

A. Well, it did not cross my mind to have directors included in the applicant's submissions.

Q. Did you seek advice in relation to how to fill out this application form?

A. No.

46. A copy of a blank page “3” (taken from Exhibit B, Tab 50, Appendix 1) is reproduced as Appendix 4.

47. The oral evidence given by Mr Bratby concerning his preparation and execution of the returns relating to personal political donations made by Mr Honan was (Transcript, 7 February 2018, page 13, lines 39 to 43 and page 14, line 48 to page 49, line 51):

PROSECUTOR

Q. Did you complete this application form?

A. Yes.

Q. You did that, even though it was Dick Honan's personal political donations?

A. Yes.

Q. So you'd agree that since 2013, it has been your practice to lodge the personal political donations disclosures on behalf of Dick Honan?

A. He signed the forms. I just prepared them.

48. In his affidavit, Mr Bratby gave the following evidence concerning his preparation and execution of the returns (Affidavit of Gilbert Bratby, page 2):

I am not directly involved in the preparation or submission of planning applications. However, as part of my role as company secretary, I'm responsible for maintaining records of political donations made by the Manildra Group and ensuring these are reported in accordance with applicable political donations laws.

49. Mr Bratby was also questioned about his qualifications. His evidence on this point was (Transcript, 7 February 2018, page 12, lines 20 to 30):

PROSECUTOR

Q. So, in your affidavit you mention that you are the company secretary and have performed that role for at least 15 years. You also hold a law degree, don't you?

A. Yes.

Q. Were you admitted as a solicitor?

A. No.

Q. What other qualifications do you hold?

A. I'm a chartered accountant, chartered secretary.

Q. Chartered accountant, chartered secretary. You also have an MBA?

A. Yes.

50. It is self-evident that Mr Bratby holds a position of significant corporate responsibility for the Manildra group of companies. That is not only demonstrated by his holding of the position of Company Secretary of the entities within the Manildra group of companies (a role which imposes significant statutory compliance responsibilities pursuant to the Corporations Act 2001 (Cth) but also from the fact that, as he affirmed in his affidavit, he had been authorised to speak on behalf of the Company for the purposes of these proceedings (including, as elsewhere discussed, for the purposes of making a corporate apology for the failure to disclose these personal political donations made by Mr Honan)).

51. I have earlier noted that the Prosecutor submitted that I should conclude that, with respect to each of these charges, the Company's conduct was of a sufficient degree of recklessness or negligence as to be regarded as an aggravating factor for the purposes of determining the appropriate penalties to be imposed on the Company.

52. The Prosecutor's written submissions on this point were in the following terms:

18. Shoalhaven Starches were aware of the obligation to comply with s 147, but did not have a documented procedure in place to deal with those obligations. The failure of Shoalhaven Starches to disclose the donations by Mr John Thomas Honan Juniors political donations was attributed to an oversight on the part of Gilbert Bratby.

19.   While Mr Bratby states that he became aware in December 2016 that the Political Donations Disclosure Statements may not have been completed correctly in December 2016, no attempt was made by Shoalhaven Starches to update or amend the MOD 9 or MOD 10 applications which were awaiting determination to disclose the relevant political donations by Mr John Thomas Honan Junior.

53. In response, Mr Astill's written submissions on behalf of the Company on this point were:

21.   …while there may have been a series of omissions giving rise to the relevant offences, these should not be regarded as aggravating in the relevant statutory sense.

…

34.   The evidence of Mr Gilbert Bratby, the Company Secretary of the Defendant and person who signed the disclosure statements, is that the failure to disclose the donations was inadvertent and a result of misinterpretation of the disclosure requirements.

35. It is apparent from the affidavit of Gilbert Bratby, which describes the process that was followed when completing the Political Donations Disclosure Statements, and otherwise from and the fact that the donations made by the Manildra Group of Companies were disclosed, that the Defendant made bona fide attempts to comply with its obligations under section 147 of the Act in respect of each of the Modification Applications the subject of the charges. The inadequacy of these attempts in actually achieving compliance has led to a change in procedures addressed in the following paragraphs.

54. Finally, during the course of oral submissions, he said (Transcript, 7 February 2018, page 38, line 40 to page 39, line 5):

We made a mistake. We didn't understand what the word "associate" means in the context. And that should be accepted for what it is in characterising the behaviour of the defendant in committing the offence. They tried, Mr Bratby filled out the forms. My friend put to him that he knew that Dick Honan had made donations and that must be right, but his evidence was it didn't occur to him that he had to disclose those donations. He knew about them, he tried to fill out the form. He misunderstood what associate meant. And, with respect, there's some I withdraw that. I will say instead, the legislation in this respect is not entirely crystal clear. The net cast by this obligation is very broad. Any person who might have a financial benefit by the application, apart from shareholders in publicly listed companies, is very broad. I am not saying this excuses the offence. Clearly we have pleaded guilty and accept the consequences, but the characterisation of it I think it is an honest, an honest mistake if not an honest and reasonable mistake.

55. For me to be satisfied that this conduct should be regarded as a factor of aggravation, I must be so satisfied beyond reasonable doubt (Anderson v R (1993) 177 CLR 520; Olbrich). I am satisfied that it is appropriate so to determine. I have reached this conclusion after having regard to the totality of the following factors:

1. Mr Bratby holds a position in the corporate structure of the Manildra group of companies that imposes significant statutory compliance responsibilities on him. Whilst those statutory obligations may not expressly mandate that he has responsibility for completing political donation disclosure forms, nonetheless, he had assumed that responsibility as part of his duties within the Manildra group of companies;

2. Mr Bratby has been the Company Secretary of the various entities within the Manildra group of companies for 15 years (Affidavit of Gilbert Bratby, page 2);

3. Mr Bratby was aware of the need to make such political donation disclosures as were required to be made (as evidenced by the fact that he completed such Political Donation Disclosure Statements on behalf the Company concerning the Company's corporate donations);

4. Mr Bratby's professional qualifications, as earlier set out, make it entirely reasonable to assume that he had a full and proper appreciation, generally, of the necessity to comply with the Company's statutory obligations when fulfilling his duties as Company Secretary with respect to any and all of the entities within the Manildra group of companies; and

5. Mr Bratby's signing of the relevant page “3” of each of the political donation disclosure forms presented to him for signature (without reading them with sufficient diligence to observe the various expressly set out references to other information to which it was mandated to have regard) demonstrates that, in these instances, Mr Bratby was either recklessly indifferent to what might be the full range of statutory requirements with respect to the disclosure of political donations or was negligent in his failure to have regard to them.

56. It beggars belief that a man of Mr Bratby's qualifications and lengthy experience as Company Secretary of the entities within the Manildra group of companies would simply sign a form put in front of him on any important matter relating to the integrity of the land use planning system in New South Wales without reading that which he was being asked to sign.

57. The proposition that he had inadvertently failed to understand the nature of the disclosure requirements for directors of the Company sits ill with his qualifications and experience. If this failure to understand was the cause of the omission to disclose the various personal political donations made by Mr Honan, that failure to understand would have been rectified if he, given his experience and qualifications, had read the first and second pages of the political donations disclosure package, pages to which explicit reference was made, as dealt with in the Prosecutor's cross-examination of him, of the necessity to have regard to the information on those pages.

58. As a consequence, I am satisfied beyond reasonable doubt that Mr Bratby's conduct was so recklessly indifferent or negligent, when coupled with the nature of his responsibilities on behalf of the Company, that this reckless indifference or negligence should be regarded as an aggravating factor to be taken into account in my determination of the appropriate sentences to be imposed for each of the five offences to which the Company has pleaded guilty.

The Company’s prior convictions

59. The Prosecutor’s written submissions record that, between 1979 and 2006, the Company had been prosecuted on eight occasions for environmental offences. Some of those offences had attracted significant financial penalties. It is unnecessary to set them out in detail. This position was not contested by the Company.

60. The Prosecutor submitted that, for the purposes of s 21A(2)(d) of the Sentencing Procedure Act, the Company’s past record of environmental criminality should be taken into account as an aggravating factor.

61. Mr Astill, counsel for the Company, submitted that these offences should not be so regarded, as I understood him, for two reasons. First, the passage of time since the most recent offence (being over 11 years ago) should cause me to regard them as being “spent” for the purposes of these proceedings. Second, the fact that the offences were of an environmental nature, quite distinct from (and to be differently characterised when compared with) the offences in these proceedings, meant that the Company's past criminal record should not be regarded as an aggravating factor in my penalty determinations.

62. I accept the first of the reasons proposed by Mr Astill for the past record of the Company not being a matter of aggravation. With respect to the proposal that the nature of the offences (rather than when they occurred) is not a relevant matter, this does not require my determination in these proceedings given that I am satisfied that effluxion of time (for the purposes of aggravation) does not require them to be taken into account.

A series of criminal acts?

63. I turn, next, 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,

64. Although, as earlier set out, there were a number of omissions by the Company giving rise to these offences, there is no suggestion that these were unrelated omissions in the sense requiring consideration for the purposes of this provision. As a consequence, these offences do not warrant being regarded as aggravating in the relevant statutory sense here invoked. As a consequence, this provision has no role to play in these proceedings.

Financial gain

65. The final 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,

66. There is no evidence to suggest that these offences were committed for financial gain - merely that they followed from the Company’s inadequate systems and, as later discussed specifically, sloppiness on behalf of Mr Bratby, Company Secretary of the Company and other entities in the Manildra Group. As a consequence, this provision also has no role to play in these proceedings.

The Company’s subjective factors

The Company’s prior offences

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

68. I have earlier explained why I do not regard the Company's prior environmental criminal record as a matter requiring to be taken into account as a factor of aggravation. However, the Company's record also arises for consideration under the heading of this potentially mitigating factor in the sentencing process.

69. During the course of the hearing, I put to Mr Astill that, if I was not to conclude that the Company's record was a factor of aggravation, nonetheless, it did arise in the context of mitigation and that that record did make it appropriate that the Company was not entitled to have me regard the Company as being a “cleanskin” for the purposes of this provision. Mr Astill acknowledged that the Company accepted that this was the appropriate approach to take if I was not to conclude that the Company's record was a factor of aggravation.

70. As a consequence of this concession, this potential factor cannot weigh positively for the Company.

The Company as a corporate citizen

71. 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".

72. Mr Bratby gave no evidence of any social or community activities undertaken by the Company or by other entities in the Manildra Group. There is no other evidence which could support any conclusion that the Company, or any other entity in the Manildra Group, plays some positive social role in the Bomaderry community or in the broader Nowra region.

73. No adverse inference arises from this. However, I am satisfied that there is no basis upon which I could conclude that the Company should be regarded as a good corporate citizen, in a positive sense, and thus the Company is to be given no weight for this in my sentencing consideration later to be undertaken.

Likelihood of reoffending - specific deterrence

74. The third relevant factor is that, in s 21A(3)(g) of the Sentencing Procedure Act, as to whether the Company "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. This gives rise to the necessity to consider whether any element of specific deterrence should be built into the sentences for these offences to reinforce to the Company (and those administering it) the need to satisfy the political donations reporting requirements in the future in their entirety.

75. The Prosecutor’s oral submissions on this policy, in the context of the extent to which specific deterrence for the Company might be appropriate, said (Transcript, 7 February 2018, page 41, lines 20 to 24):

PROSECUTOR

It is, however, the Prosecutor's clear case that when looking at the possibility of reoffending, it's incumbent upon the defendant to demonstrate that they had an effective policy to effect ‑ to prevent the commission of further offences and at this stage that the defendant has not made that claim out.

76. Mr Astill noted that the Company now has in place a “Manildra Political Donations Disclosure Procedure” (the procedure) which was Annexure H to Mr Bratby’s affidavit. This document is discussed later.

77. Although I later reject (between [95] and [101]), the submission by the Prosecutor that the absence of evidence from the Company's directors should be taken into account on the question of whether or not the Company has demonstrated remorse for the purposes of s 21A(3)(i) of the Sentencing Procedure Act, it is also necessary to consider, in the context of assessing whether or not specific deterrence for the Company is required, Mr Bratby's evidence concerning the position of the directors of the Company.

78. Mr Bratby gave oral evidence on this point in the following terms (Transcript, 7 February 2018, page 25, lines 28 to 32):

PROSECUTOR

Q. In relation to paragraph 14 of your affidavit of 11 October 2017, you've described there the Manildra political donations disclosure procedure. You'd accept, wouldn't you, that there is no portion of the procedure which can be found at pages 38 to 41 that requires any of the directors of Shoalhaven Starches to disclose to you personal political donations that they have made?

A. No, that's not covered at all.

Q. So the effectiveness of this procedure is dependent on them disclosing matters of which you are unaware and have no authority to demand the

information from them?

A. Sorry, would you say that again?

Q. I'll break it down into smaller bites?

A. Well, put it another way, we - I told just the directors, "Don't make any more political donations", and they agreed.

Q. That's not documented in the procedure, though, is it?

A. Well, because this is a company policy. That's - I'm talking about the directors. I just told them, "You don't want to be in a big mess. Don't do it."

Q. You didn't include that in your affidavit, did you?

A. No.

Q. You didn't mention that you had a discussion with the directors where you told them

A. Well, we just have a verbal and we've all agreed, we're not going to make political donations as directors, and they haven't since whatever the date was of the last one because of the mess. It's a private company, so we just you know, we had a chat, but in my affidavit specifically talking about the donations given in relation to these, never brought up that conversation, no. It's not in my affidavit.

79. First, it is to be observed that Mr Bratby’s affidavit evidence made no mention, whatsoever, of these undertakings from the directors.

80. It is also to be observed that:

1. Mr Bratby’s evidence (of what he said the directors had said to him) constitutes hearsay evidence;

2. Such evidence is generally not admissible unless a specific statutory exemption makes it so (s 59 of the Evidence Act 1995 (the Evidence Act));

3. As the director’s undertakings (it not being clear whether they were given on separate, individual occasions or in some collective fashion) are not recorded in any minute of a Board meeting of the Company or in any other written record of the Company, these undertakings do not fall within the business records exemption provided by s 69 of the Evidence Act; and

4. Given that none of the directors were proposed to be (nor were) called to give evidence, the criminal proceedings exception to the hearsay rule provided by s 66 of the Evidence Act did not apply.

81. This evidence was, therefore, inadmissible.

82. However, it is further to be observed that the Prosecutor did not object to the giving of this evidence. In these circumstances, the evidence being inadmissible but not objected to, it is necessary for me to consider what weight (if any) I should give to the unsupported, but unchallenged, assertions made by Mr Bratby.

83. In her closing oral submissions, the Prosecutor said, on this point (Transcript, 7 February 2018, page 30, lines 31 to 38):

In cross‑examination, Mr Bratby asserted that there had been undertakings given by the directors not to make further personal political donations. That statement should be treated with caution given that it is not referred to in Mr Bratby's affidavit and one would normally expect that it would be included in the affidavit, particularly when Mr Bratby gave evidence that he had considered all relevant matters in writing the affidavit. But secondly, that proposition is not referred to anywhere in the Manildra political donations disclosure procedure.

84. Mr Astill submitted, on this point (Transcript, 7 February 2018, page 33, lines 28 to 37):

He (Mr Bratby) has spoken to the directors, they have told him something. My friend says that oral evidence should be treated lightly. I am not sure what that means. He must be telling the truth, it wasn't put to him that he was lying or that the directors hadn't said that. And your Honour will recall he was asked about his role and whether his role included taking minutes and he said something to the effect, "Such as they are because it's a family company and it's an informally run thing."  So the fact that there's no minutes that I can hand up where the directors adopted the policy should not be regarded as in any way undermining his evidence that that's the policy and that's the intended company in the future.

85. I am satisfied, under the circumstances, that I should give little weight to the directors’ undertakings. I have reached this conclusion because the steps taken by the Company (discussed in the next section concerning contrition and remorse) to prevent future occurrences of nondisclosure of political donations make no mention of any obligation being placed on the directors of the Company to draw to Mr Bratby's attention any personal political donations that may have been made in the past but still remaining subject to requirements to disclose or which might be made in the future.

86. The lack of any documentary recording of any resolution by the directors collectively (as opposed to unverified bilateral oral undertakings given to Mr Bratby) also cannot engender any confidence that there may not be inadvertent breaches in the future.

87. The only way to assist in ensuring that such circumstances might not arise is to factor in a significant, specific deterrence element into the sentences to be imposed on the Company for these five offences.

Contrition and remorse

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

89. In her oral submissions, the Prosecutor invoked the principles discussed by Preston CJ in Environmental Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 (Waste Recycling and Processing). The Prosecutor submitted (Transcript, 7 February 2018, page 27, line 20 to page 30, line 23):

In the context of environmental prosecutions the judgment of Preston CJ in Environmental Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 gives guidance on the manner in which contrition and remorse might be remanifested by a defendant. And I refer in particular to paras 203 to 215 where his Honour identified four factors, sorry four forms for contrition and remorse. The first is, "The speed and... contrition and remorse." That's found at para 204. And the prosecutor would submit that in this case there was no speedy attempts to correct the records of political donations, and that's the clearest indicator of remorse that the Court - to which the Court would have regard.

Secondly, para 210 his Honour refers to, "Voluntarily reporting the...court in sentencing." In this case, none of that that factor or criteria is present. Mr Bratby received the inquiry from the Department of Planning and answered it, but there was certainly no further voluntary reporting of the commission of an offence.

In para 212 his Honour--

HIS HONOUR: Are you suggesting to me that the letter which is behind tab 49 which is addressed to the nominated senior compliance officer of the department, does not constitute reporting to the department in its many hydra headed facets or are you saying to me that the same information ought to have been sent multiple times to the department to the various heads?

PROSECUTOR: If I could characterise it this way, your Honour, in para 210, there is reference to voluntarily reporting the commission of an offence. This letter is merely the disclosure of information and the response to a request. There is certainly nothing in this letter which could be characterised or would be characterised as a voluntary reporting of the commission of an offence and--

HIS HONOUR: That is in the context of circumstances where the pollutant is going down the creek. That, it seems to me, does not necessarily apply as an

appropriate analogy to when - circumstances when that which is involved is information rather than a pollutant. Now, I think you need to tell me in the context of what his Honour dealt with there as to why, given that there is no what I might describe as physical manifestation of the offending conduct, in terms of air pollution or water pollution or anything else of that nature, that the notification to the department contained in Mr Bratby's letter of 30 December 2016 doesn't constitute notification to the department for all purposes.

PROSECUTOR: The reason why it doesn't constitute a notification is because it does not address the elements of the offence and, in particular, at p 559 behind tab 49, there is, in fact, a denial of any financial benefit, so there's this statement, "Other than as an indirect shareholder of the...holding company." It's the Prosecutor's submission that that falls well short of being a voluntary reporting of any offence and, in particular, as a result of the cross examination of Mr Bratby, a finding would be made that it is, in fact, inaccurate because the company's structure clearly shows that John Honan, as he is known, is, in fact, a shareholder of the ultimately parent company of Shoalhaven Starches.

HIS HONOUR: Yes.

PROSECUTOR: The next factor referred to by present CJ is the taking of action to address the courses of the offence and in this case and this is tied in then with the mitigating factor at 21(a)(3) subpara (g), "The offender being unlikely to reoffend", the Prosecutor's submission is that the procedure developed by the Manildra Group in response to this prosecution will not be effective to prevent the commission of any further offences and that to the extent that Mr Bratby then in the witness box suggested that he had had conversations with the directors before they had indicated that they were not going to make further personal political donations, but the Court would treat that assertion very likely, in particular, because it was not contained in Mr Bratby's initial affidavit and, secondly, because the directors themselves haven't been willing to come to the Court and be cross examined in relation to future intentions. I will address, more particularly, in relation to the likely effectiveness of the procedure when I'm talking about the likelihood of reoffending.

The final factor identified at para 214 is the personal appearance of corporate executives in Court and their personal evidence outlining the company's genuine regret and stating future plans to avoid a repetition of such offences is an indication of genuine corporate contrition. The Prosecutor's submission is that Mr Bratby has made an undoubted statement of personal contrition in his affidavit, but there is nothing from the directors who are above him in the corporate structure as to their contrition for the commission of the offence and the board of directors has not gone so far as to even formally adopt the procedure.

If I could now turn specifically--

HIS HONOUR: On that point, what am I to make of the combination of the third sentence of para 1 of his affidavit, in company with the first sentence of para 13 of his affidavit?

PROSECUTOR: Sorry, would you just repeat those two sentences again, please?

HIS HONOUR: Yes. The third sentence of para 1 says, "I am authorised to make this affidavit on behalf of the defendant."

PROSECUTOR: Yes.

HIS HONOUR: Paragraph 13 says, "On behalf of the defendant, I apologise." It's not merely a personal apology, is it? It is a corporate apology. How does that combination about which he was not cross examined and, therefore, that evidence stands uncontradicted, how does that stand against your proposition now that I shouldn't regard it as a genuine expression of remorse on behalf of the defendant because the directors aren't here to do it?

PROSECUTOR: Perhaps I might characterise it another way, your Honour. The Chief Justice refers to the personal appearance of corporate executives in Court and the personal evidence outlining the company's genuine regret and stating future plans to avoid repetition of such offences

HIS HONOUR: Leaving aside the question of future plans, for the moment, you are proposing to make operate submissions concerning annexure H to Mr Bratby's affidavit and I'll hear them when you get to them, but it is my experience, having done a number of these sentencing hearings over the past several years, that the relevant corporate executive offers affidavit evidence in a form generally consistent with what is put out in the culmination of the sentences in paras 1 and 13 to which I've referred. I do not recollect, with one exception, ever having a corporate director here to give that sort of corporate apology. It's universally otherwise been accepted that the appropriate responsible executive can give that evidence. Now, you're asking me, I understand, to draw the conclusion that that's inappropriate in these circumstances. I want you to explain to me quite specifically why that should be the case.

PROSECUTOR: If I could characterise it this way, in reading para 13 and this will be a matter for the Court to consider it seems to me that Mr Bratby was saying that it was a personal omission rather than a corporate omission and that would qualify the quality of the remorse and if I could post the counter factual, para 13 does not read it was due to a failure in the corporate systems and policies. It says--

HIS HONOUR: That goes to what I make of the second sentence of para 13.

PROSECUTOR: Yes.

HIS HONOUR: And that is, at least, in part, as I understand your earlier submission, something that you say I should have regard to as to whether the actions were reckless were negligent in the context of aggravation. I'm setting that aside now. Paragraph 214 of his Honour's decision in Waste Recycling and Processing Corporation, oft cited decision both where you stand and where I sit in proceedings such as these, refers to the personal appearance of corporate executives and I'm saying to you I want to know why you say I should not accept that what is contained in the first sentence of para 13 isn't put on the behalf of the company as a corporate expression of remorse. Whether it's adequate is a different thing. It's a question of why I shouldn't accept that it's a corporate proposition.

PROSECUTOR: I would not make that submission, your Honour.

HIS HONOUR: You then said to me, but it's not good enough as the directors aren't here to do it. I want to know why, given what his Honour said at 214, why I should not think that that is an adequate expression of remorse, particularly in circumstances where you didn't test him on it in cross examination.

PROSECUTOR: Your Honour, the only other comment that I would make is that there aren't - as alluded to by his Honour or referred to by his Honour in para 215, there was no attendance at Court by the directors or the chief executive or the managing director, going to the quality of the expression of the remorse, not to whether or not it was on behalf of the company.

90. In addition to the matters discussed by Preston CJ in Waste Recycling and Processing, Pepper J also set out in Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51, at [80], a helpful summary of factors potentially to be considered in assessing the extent of a defendant's contrition and remorse for the purposes of this provision. This summary was endorsed by Robson J in Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158. Pepper J summarised these matters as:

1. first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence;

2. second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities;

3. third, taking action to address the cause of the offence; and

4. fourth, the personal appearance of corporate executives in Court to give personal evidence of the defendant’s regret and a plan of action to avoid repetition of the offence. [references excluded]

91. The first of these propositions is not relevant in these proceedings.

92. With respect to the second, this is not an instance of self-reporting as the Company only became aware of the deficiencies in its disclosures as a consequence of the cross-matching amounts.

93. In this instance, there are two relevant elements from Mr Bratby’s affidavit. First, as part of (1), Mr Bratby deposed that:

I am authorised to make this affidavit on behalf of Shoalhaven Starches.

94. Second, as part of (13), Mr Bratby deposed that:

On behalf of Shoalhaven Starches I apologise for not including Mr John Thomas Honan’s personal donations in the Political Donations Disclosure Statements.

95. As can be seen from the earlier transcript extract, the Prosecutor submitted that I should conclude that this latter statement amounted to a personal apology by Mr Bratby rather than being a corporate expression of remorse. I am unable to accept this proposition.

96. It is clear from the precise terms of the two elements of Mr Bratby's affidavit that I set out above that Mr Bratby had authority, for the purposes of these proceedings, to speak on behalf the Company, and that in that context he proffered the apology in the second extract. I am satisfied that, as a consequence, the Company is to be taken as having expressed regret for the failures to disclose which gave rise to the five offences to which the Company has pleaded guilty.

97. In this context, it is also to be observed that, in cross-examination, the Prosecutor did not suggest that Mr Bratby was not authorised, relevantly, to speak on behalf of the Company, nor that the apology was not genuinely proffered.

98. The Prosecutor also submitted that I should take into account the fact that no directors of the Company were present in Court or gave evidence in the proceedings. In particular, as I understood these submissions, the absence of evidence from the director whose personal political donations had failed to be disclosed was a matter to which I could, and should, have regard as to the genuineness of the Company's corporate remorse.

99. I am unable to accept this proposition. Mr Bratby is the Company Secretary of entities in the Manildra Group, including the Company. It is, self-evidently, a position of significant corporate responsibility. Mr Bratby was present in Court throughout the proceedings. The director whose donations were not disclosed is not the subject of the changes which are before the Court. The defendant is the Company and not the director.

100. As a consequence, I pay no heed to the fact that this director (or either of the other two directors of the Company) were not present in Court and did not give evidence in the proceedings.

101. I am satisfied that Mr Bratby's apology on behalf of the Company has been appropriately and sufficiently expressed (and is to be regarded as reinforced by the early pleas of guilty).

102. I now turn to steps taken by the Company to address the cause of the offending conduct.

103. It is to be inferred, from Mr Bratby's evidence, that all the entities within the Manildra group of companies are private companies and thus there has been adopted the practice within the Manildra Group to conduct Company business involving the directors in a somewhat informal fashion. This was clear from the evidence that Mr Bratby gave concerning what he described as the undertakings that the directors of the Company had given him that they would not, in future, make any personal political donations. Mr Bratby's evidence on this point was in the following terms (Transcript, 7 February 2018, page 25, lines 28 to 32):

ASTILL

Q. How are you to know as company secretary responsible for filling out disclosure statements to know whether or not directors have made political donations in the future?

A. As they are of a private nature I wouldn't know, but they have given me undertakings that they will not make donations on their personal personally.

104. I now consider what are said to be the steps taken on behalf of the Company (and with respect to other entities within the Manildra group of companies) to ensure that appropriate internal disclosure will be made of reportable political donations in order to ensure that any mandated public reporting requirements for such donations can be satisfied in future.

105. There are two matters to be considered in this regard for my assessment as to whether or not I consider that the steps which have been taken are ones which can provide reasonable confidence that the failures which gave rise to these five charges would not occur in the future.

106. The first of these is the informal undertaking, described by Mr Bratby in his evidence above as having been given to him by each of the three directors of the Company. I have discussed this earlier as to why these are of little weight.

107. The second is a document entitled “Manildra Political Donations Disclosure Procedure” (the new Manildra Group procedure). The new Manildra Group procedure was Annexure H to Mr Bratby's affidavit. It is to be observed that Mr Bratby's affidavit, affirmed on 11 October 2017, said (at pages 5 to 6) the following with respect to the dissemination of the new Manildra Group policy to employees of entities within the Manildra group of companies:

I am taking steps to communicate the procedure to employees in the Manildra Group who have responsibilities in relation to planning applications, including sending a copy of the procedure to the relevant employees and scheduling discussions with them to ensure everyone understands their responsibilities under the new procedure. This includes Brian Hanley, who is responsible for preparing and submitting the modification applications on behalf of Shoalhaven Starches, and Ming Leung, the Site Manager of the Bomaderry factory. Given that the Manildra Group relies heavily on external consultants in relation to planning and development matters, I am also sending a copy of the procedure to Manildra’s external consultants and discussing it with them, including Cowman Stoddart who assisted Manildra in relation to the modification applications for the Bomaderry factory.

108. The Prosecutor did not ask Mr Bratby any questions about this in her cross‑examination of him. As a consequence, I have no current information as to the extent which the new Manildra Group policy has, in fact, been drawn to the attention of employees of entities within the Manildra group of companies. Under the circumstances, it seems to me that it is appropriate for me to make a positive assumption concerning the promulgation of the policy to employees of entities within the Manildra group of companies (that is to make an assumption of taking the question of policy distribution at its highest for the Company), given the absence of questioning by the Prosecutor of Mr Bratby this point.

109. Before turning to the question of content of the new Manildra Group policy, it is appropriate to make some observations concerning its timing. The new Manildra Group policy is dated October 2017. The charges that were laid against the Company were filed in this Court on 22 June 2017. Whilst I appreciate that, originally, the Company had been charged with a total of eight offences, and only five of them were proceeded with by the Prosecutor (this aspect being a matter of irrelevance in my sentencing consideration and I pay no heed to it), it is nonetheless the position that, from the date summonses were served on the Company, the Company was on notice that there were concerns about the adequacy of its political donation disclosure practices.

110. The next relevant date is the date on which the Company entered guilty pleas to the five charges that remained pressed by the Prosecutor. This date was 25 August 2017.

111. There was a time lapse, therefore, of three months after charging and over a month after pleading guilty before the policy was proposed to be provided to employees of the Manildra group of companies.

112. I now turn to consider the adequacy of the new Manildra Group policy. It is to be observed at best, as I pointed out to Mr Astill during the course of the hearing, that the proofreading of the document should be regarded as sloppy. On the third page of the document, at cl 8(d), the document refers to applications or submissions made to a “Local Counsel” (the inaccurate terminological substitution being self-evident). I have not undertaken a detailed grammatical or spelling proofreading of the document but I have, however, read it carefully in order to be able to analyse the structure of the new Manildra Group policy and the extent to which that structure might be regarded as adequate as providing an appropriate basis to fulfil a prophylactic function to ensure that future potential inadequacies or omissions in the Company's future political donations reporting obligations are prevented.

113. The new Manildra Group policy, on my assessment, is somewhat wordy and, critically in my view, does not address a desirable and fundamental matter arising from the political donations declaration requirements. This is that, even if there are no disclosable political donations, a “nil return” should be completed to go with the relevant planning application made by a Manildra Group entity or to any submission made by a Manildra Group entity about a planning application made by some other party. Given that, by the time this document was proposed to be circulated, the Company had pleaded guilty to these offences, common sense would mandate a very cautious approach to disclosure requirements in the future.

114. Nowhere does the Manildra Political Donations Disclosure Procedure expressly say no planning application, or submission concerning a planning application, is to be made on behalf of any Manildra Group entity unless a Political Donations Disclosure Statement is attached to the application or submission.

115. Whilst there is what would appear to be an otherwise appropriately described record-keeping and paper-flow process, the absence of an express, upfront prohibition on the making of any planning application, or submission concerning a planning application, unless a Political Donations Disclosure Statement (including a “nil return”) is appended, is a significant defect in the procedure.

116. At a more minor level, (5) also only requires the Responsible Person to annex a Political Donations Disclosure Statement to the application (by inference, a “planning application” as earlier defined in the procedure) and does not make it expressly clear that this requirement also applies to attaching such a statement to any submission made on behalf of a Manildra Group entity concerning a planning application which may have been made by some other person or entity not part of the Manildra Group.

117. Given the circumstances of this offending conduct and, apparently, Manildra Group entities must lodge planning applications or make submissions concerning proposed developments of other parties on a decentralised or localised basis, such an express prohibition on lodgement without a Political Donation Disclosure Statement would seem to me to be fundamental.

118. As a consequence, although 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 - the nature of its preventative actions are not entirely satisfactory.

108. It is for these reasons that, as earlier discussed, an element of specific deterrence is necessary in the imposed penalties.

The Company's pleas of guilty

120. 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.

121. 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%.

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

123. When this is coupled with the efficient conduct of the hearing (the sentencing hearing was completed in half a day (including oral evidence from Mr Bratby)), 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 the Company is entitled to the maximum discount of 25%.

Assistance to the Prosecutor

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

125. The Company has cooperated with the Prosecutor and worked with the Prosecutor to prepare an Agreed Statement of Facts.

126. I am satisfied that it is appropriate, overall, to conclude that the Company has cooperated with the Prosecutor and is entitled to have me consider this in the balancing required to determine the appropriate penalties to be imposed.

The process for sentencing

Introduction

127. 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

128. 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".

129. I have earlier set out the inadequacies of the Company’s past processes in Mr Bratby's dealing with Political Donations Disclosure Statements. I have also explained the reasons why the directors’ informal undertakings to him are inadequate and have set out what I consider to be the significant defect in the Manildra Political Donations Disclosure Procedure. These, in my view, show why there is a necessity for a degree of specific deterrence to be incorporated in the penalties for each of these five offences.

130. In addition, appropriate penalties reflecting the nature of the offences 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 seriousness with which such offences should be regarded (see the extract from Aston Coal at [33] above).

The broad approach to be taken to considering these charges

131. The proper approach, in my assessment, although separate charges have been laid with respect to each modification application 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.

132. The submission was made by Mr Astill that the fact that disclosures of these donations by Mr Honan had been made to the Election Funding Authority of NSW where 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 five charges. As in my AGL decision, I am unable to accept such a proposition. The first of the reasons for this set out in my AGL decision, at [91], are equally applicable here. I wrote:

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.

133. As in the AGL proceedings, the Company has submitted that the fact that all the modification applications were dealt with by the Planning Assessment Commission warranted these offences as being somehow less serious. Mr Astill’s submissions on this point (Defendant’s written submissions, page 8, paragraph 25) were in the following terms:

25.   Because some reportable political donations were disclosed the Modification Applications were determined by the Planning Assessment Commission in accordance with the Minister’s Instrument of Delegation dated 14 September 2011. The defendant understands that the process for assessing the Modification Applications, or the outcome of the assessment of the Modification Applications, would not have been any different had Mr John Thomas Honan Junior’s donations been disclosed, and there is no evidence to the contrary.

134. A similar proposition was rejected by me in my AGL decision, where I wrote (at [93] and [94]):

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.

135. The Company’s submissions provide no basis upon which I should revisit these conclusions in AGL.

Classifying offences within a range

136. 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.

137. 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.

138. 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]).

139. 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.

140. The Prosecutor proposed that the four offences where there were multiple failures to disclose should be characterised as being toward the upper range of seriousness for such offences, while the charge in relation to the single failure to disclose should be regarded as being above the middle of the range. Mr Astill put a contrary position proposing that all offences should be characterised as being below the middle of the range, with the single failure to disclose towards the lower end of the range. After considering all of the material relevant to the objective seriousness of the Company’s behaviour, I am satisfied that it is appropriate to reach a conclusion characterising the first four charges in a different fashion to that concerning the final charge.

141. Having regard to the nature of each of the failures to disclose reportable political donations, I am satisfied that the four offences where there were multiple failures to disclose should be described as being at the middle of the high range of such conduct, whilst the failure to disclose the single donation (the fifth offence charged) should be regarded as being in the middle of the medium range of such offences.

Consistency in sentencing

General

142. 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.

Other potentially relevant cases

143. There are only two other comparable instances of prosecution brought before this Court for breaches of the requirement to disclose reportable political donations when making development applications. Those cases were Aston Coal and AGL, both cases to which earlier reference has been made.

144. There are two distinct differences between these prosecutions of the Company and those two earlier matters.

145. The first is the fact that, as earlier set out, the legislature has doubled the penalties for such offences since each of those earlier cases was determined. I also noted that the creation of the offence giving rise to the prosecutions in those earlier instances (and, now, of the Company for the offences with which it is presently charged) was only created by the insertion of s 147 of the EP&A Act, where that provision took effect from 2 October 2008. That the legislature has chosen to double the applicable penalties after only a period of some six years after the creation of the offence can be regarded as a reflection of the viewing by the legislature of how the public would regard the seriousness of such offending conduct.

146. Such a significant comparative increase in the applicable maximum penalty in circumstances where such an increase cannot merely be regarded as an inflationary adjustment (particularly in light of the doubling of the potential jail sentence for individual offenders) leads to the conclusion that the legislature now regards offences of this nature as having a greater degree of seriousness than had been the position at the time of the first creation the offence.

147. Second, neither Aston Coal nor AGL were instances where the sentencing judge reached the conclusion that there was, unlike here, any factor of aggravation requiring to be taken into account when determining the appropriate sentences to be imposed.

148. Aston Coal and AGL do, however, provide a useful baseline from which consideration can be had as to how these offences should be characterised within the range of seriousness. However, they provide little assistance on what should, here, be the appropriate penalties - save for pointing to what might be regarded as a floor (but only as a percentage rather than an amount) when having regard to the maximum available penalty.

149. I have, earlier, set out the approach I took in my AGL decision on the question of whether or not the failure to disclose any particular donation was one which occurred in multiple instances or only in a single instance. For the purposes of these proceedings against the Company, that approach can be seen, in an easy visual depiction, in Appendix 2 to this decision. A similar approach is appropriate here for the reasons given in my AGL decision (as earlier quoted at [134]).

150. The second matter which sets these instances of offending conduct by the Company apart from those which were dealt with in Aston Coal and AGL is that I have found, for the reasons earlier set out, that there was a significant aggravating factor (reckless indifference or negligence) - there being no such aggravating factor requiring to be considered in either Aston Coal or AGL.

151. Overall, as a consequence, Aston Coal and AGL have limited comparative utility except for their minor baseline value.

Characterisation of these offences

The appropriate starting sentences

152. 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.

153. I have earlier described how I consider that the various offences should be characterised.

154. For the few offences involving failure to disclose multiple donations, a starting penalty of $36,000 is appropriate. A starting penalty of $27,000 is appropriate for the single donation offence. These starting penalties have appropriate regard not only to the offending conduct, but also to the factor of aggravation earlier described.

155. A strictly arithmetic application of these penalties would derive an overall total of all penalties of $171,000. However, there are two moderating 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 application of the 25% discount for the utilitarian effect of the Company's early guilty plea to each of the offences and the extent to which some further discount is warranted arising from the Company’s subjective factors, whilst the second is the consideration of totality and accumulation.

156. Having regard to the Company’s subjective factors, it is appropriate to apply, for the reasons earlier set out, a total discount of 27.5% - including the maximum 25% discount reflective of the Company's entry of guilty pleas to all offences at the earliest opportunity.

Accumulation and totality

Introduction

157. I have earlier explained why, although each of the five charged offences are separate and have differing disclosure patterns (as shown in Appendix 2), they all arise from the same failure by Mr Bratby to comprehend and fulfil the obligations imposed on the Company by the legislative disclosure regime. 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).

158. In this context, I am satisfied that, although a straight accumulation of the earlier set out starting penalties as disclosed would result in an overall total penalty of $124,000, having regard to the necessity to moderate the total penalty to be distributed amongst the five offences, fines totalling $107,000 would be appropriate as an accumulatively discounted outcome.

Attribution of penalty to individual offences

159. As a consequence, I have concluded that the penalties actually to be imposed should be:

• The Mod 5 failure to disclose   $26,000

• The Mod 7 failure to disclose   $24,000

• The Mod 8 failure to disclose   $22,000

• The Mod 9 failure to disclose   $20,000

• The Mod 10 failure to disclose   $15,000

160. This will result in at total penalty imposed on the Company of $107,000.

Costs

161. It is appropriate to order, pursuant to s 257B of the Criminal Procedure Act 1986, that the Company pay the Prosecutor's costs. There is agreement between the Prosecutor and the Company that the order, for this purpose, should require the payment of costs of $40,000. For the reasons discussed in EPA v Barnes [2006] NSWCCA 246, I have had regard to this factor in my determination of the appropriate fines to be imposed.

Publication orders

Introduction

162. I have earlier set out the reasons why, for sentencing purposes for four of the five charges here being considered, the publication notice provisions of s 250 of the POEO Act are available to me to utilise.

163. In my preparation for this sentencing hearing, I considered what might be the appropriate terms of such a publication notice if I was to conclude that it was appropriate to order such publication. I also considered, if this were to occur, what should be the publications in which the notice might be required to appear. I therefore drafted the terms of a possible publication notice and reached a preliminary conclusion as to what would be the appropriate publications for carrying, and the dimensions and location of, such a notice if this was to occur.

The terms of a publication notice

164. At the commencement of the sentencing hearing, I explained to Mr Astill and to the Prosecutor my preliminary thoughts concerning the availability of, and desirability for, such a publication order. I did this as the Prosecutor had not sought such a notice and, therefore, simply to impose one without raising the matter with Mr Astill would have been to deny the Company procedural fairness on this point.

165. I therefore provided Mr Astill and the Prosecutor with a copy of the draft publication notice I had prepared, together with the names of the two publications in which I was minded to order its appearance and the location and dimension criteria I proposed. I then took a short adjournment to permit Mr Astill and the Prosecutor to seek instruction on this general question.

166. Upon resumption, the Prosecutor indicated that she accepted the appropriateness of such a publication order and did not otherwise wish to make submissions on matters of detail.

164. Mr Astill indicated that the Company raised no objection to the requirement for such publication order or to the publication specifications. Mr Astill did, however, propose two changes to the draft which I had provided to him. One of those changes was of a grammatical nature and I have adopted it without the need to comment further.

165. The second change which was proposed by Mr Astill was that I delete a sentence in my draft which had identified Mr Honan as the director whose personal political donations had failed to be disclosed by the Company.

166. Upon reflection, I have concluded that the approach proposed by Mr Astill is to be preferred. I have reached this conclusion for the simple reason that these prosecutions have been brought against the Company and not against Mr Honan. To name him would be inappropriate because, as can be seen from the factual matters set out in this judgment, to the extent that there is fault to be attributed to an individual, that fault should be regarded as being with Mr Bratby rather than with Mr Honan. I have, therefore, amended the draft to remove that specific personal reference.

167. Otherwise, I have ordered that publication is required of that which is contained in Appendix 1.

Publications to be included

171. The publication notice will not simply be a matter of “name and shame” for the Company but will also afford a warning to others as an element of general deterrence, particularly if it is sufficiently likely to be read amongst the wider Australian business community.

172. It is for this value of general deterrence that I have concluded that it is appropriate to require publication beyond merely the South Coast Register, a newspaper of limited reach within the region where the site of the project subject to the modification applications is located. To take the appropriate message to the broader Australian business community, the orders made in these proceedings also require that the notice be published in the Australian Financial Review.

A moiety of the fines to the Prosecutor?

173. In my AGL decision, at [134] to [159], I dealt with the request by the Prosecutor that a moiety of the penalties be paid to her. I explained the concept of a moiety in the following terms:

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 Dictionary9th Edition as being a half portion of a whole.

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.

174. I then set out, between [136] and [156], why it was appropriate to order that a moiety of those penalties imposed should be paid to the Prosecutor. The reasons there set out are equally applicable in these five proceedings. As a consequence, 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.

Orders

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

In Matter No 187153 of 2017:

1. Shoalhaven Starches 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 $26,000; 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 187155 of 2017:

1. Shoalhaven Starches 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 $24,000; 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 187156 of 2017:

1. Shoalhaven Starches 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 $22,000; 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 187157 of 2017:

1. Shoalhaven Starches 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 $20,000; 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 187158 of 2017:

1. Shoalhaven Starches 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 $15,000; 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).

176. The further orders of the Court, in Matters No 187155 to 187158 of 2017 (expressly excluding Matter No 187153), are:

1. For the purposes of these proceedings, pursuant to s 126(2A) of the Environmental Planning and Assessment Act 1979 and s 250(1)(a) of the Protection of the Environment Operations Act 1997, within 28 days of the date of this order, at its expense, the Defendant will cause a notice in the form of Annexure A at a minimum size of 9 centimetres by 12 centimetres to be placed in:

1. the South Coast Register; and

2. the Australian Financial Review;

2. The notice in (1)(i) is to be published on either page 3 or page 5 of the issue within which it appears;

3. The notice in (1)(ii) is to be published on an odd-numbered page within the first eleven (11) pages of the issue of the publication within which it appears; and

4. Within 35 days of the date of this order, the Defendant is to provide to the Prosecutor, and file with the Court, a complete copy of the page of each of the publications in which the notice appears.

177. The final order of the Court, in all proceedings, is:

1. Pursuant to s 257B of the Criminal Procedure Act 1986, the Defendant is to pay, to the Prosecutor, the Prosecutor’s costs in the sum of $40,000.

**********

Appendix 1

Publication order

Shoalhaven Starches Pty Ltd convicted of failing to disclose political donations

Shoalhaven Starches Pty Ltd, a member of the Manildra group of companies, was convicted by the Land and Environment Court on 2 March 2018 of four offences of failing to disclose political donations when making applications to modify a major project approval for works at premises at Bomaderry.

The Court fined Shoalhaven Starches $81,000 in total for these four offences.

Shoalhaven Starches was prosecuted by the Secretary of the Department of Planning and Environment for these four failures to declare reportable political donations.

Shoalhaven Starches had pleaded guilty to failing to disclose a total of twelve political donations (totalling $23,355) made by one of its directors to various political parties between March 2013 and November 2014. Shoalhaven Starches was required by section 147 of the Environmental Planning and Assessment Act 1979 to declare relevant political donations at the time of lodging each of the modification applications. Although omitting to declare the donations made by its director, Shoalhaven Starches did declare political donations totalling $847,372 when making these applications.

The Manildra group of companies (which includes Shoalhaven Starches) has changed its internal processes for the reporting of political donations in the future. The Court did not agree that these changes would sufficiently prevent such failures in the future. The Court has proposed changes for the Manildra Group to consider. Shoalhaven Starches has not adopted a company policy that it is inappropriate for the company or its directors to make political donations.

The Land and Environment Court has ordered that Shoalhaven Starches place and pay for this advertisement as an additional penalty as well as the payment of the $81,000 in fines imposed by the Court. The Court also ordered Shoalhaven Starches to pay the Prosecutor’s costs of $40,000.

The legal requirement to report political donations when making development applications has applied in New South Wales since 1 October 2008. Disclosure of political donations is intended to increase transparency and protect the integrity of the land use planning system. The decision to approve each of the four modification applications was made by the Planning Assessment Commission and there is no suggestion made by the Prosecutor that these decisions were influenced by the making of any political donation (whether disclosed or not).

Appendix 2

Donations required to be disclosed but omitted

Date	Amount	Party	Mod 5	Mod 7	Mod 8	Mod 9	Mod 10
18 March 2013	$400.00	NSW Liberal Party
18 March 2013	$200.00	NSW Liberal Party
18 March 2013	$2,160.00	NSW Liberal Party
4 April 2013	$5,300.00	NSW National Party
24 April 2013	$2,000.00	NSW Country Labor Party
24 April 2013	$1,000.00	NSW Australian Labor Party
31 December 2013	$95.00	NSW Liberal Party
31 May 2014	$1,100.00	NSW National Party
30 June 2014	$5,000.00	NSW Liberal Party
7 July 2014	$1,000.00	NSW Liberal Party
13 August 2014	$4,000.00	NSW Liberal Party
20 November 2014	$1,100.00	NSW Australian Labor Party

Appendix 2 - donations omitted (19.3 KB, pdf)

Appendix 3

Appendix 4

Amendments

06 March 2018 - Heading classified as a paragraph in judgment when judgment uploaded, causing an error in the paragraph numbers for "Orders". The paragraphs are now correctly numbered.

06 March 2018 - Typographical errors in numbering of orders only.

Decision last updated: 06 March 2018