Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd (No 4)

[2022] NSWLEC 32

Land and Environment Court

New South Wales

Medium Neutral Citation:

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd (No 4) [2022] NSWLEC 32

Hearing dates:

18 and 19 October 2021

Date of orders:

1 April 2022

Decision date:

01 April 2022

Jurisdiction:

Class 5

Before:

Moore J

Decision:

See orders at [251] and [252]

Catchwords:

SENTENCE - Defendant pleads guilty to charge of breach condition of development consent - condition imposed limited daily production capacity on mobile asphalt plant - Defendant deliberately understated production rate in development application - understatement avoided necessity for environmental impact statement - understatement avoided necessity for increased environmental scrutiny of the proposed development - harm to integrity of the planning system - deliberate breach a first aggravating factor - breach part of organised criminal enterprise - second aggravating factor - breach committed for financial gain - third aggravating factor - Defendant with limited positive subjective factors - no contrition or remorse - no previous convictions - maximum penalty for offence $1,100,000 - offending conduct above the middle of the middle range of seriousness - fine of $600,000 appropriate indicative sentence - discount for guilty plea - plea not at the earliest opportunity - discount of 10% for guilty plea - fine of $540,000 appropriate

SENTENCE - Defendant pleads guilty to charge of breach condition of development consent - condition of development consent limited the number of truck movements on any one day - harm to integrity of the planning system - deliberate breach an aggravating factor - breach committed for financial gain - breach part of organised criminal enterprise - second aggravating factor - breach committed for financial gain - third aggravating factor - Defendant with limited positive subjective factors - no contrition or remorse - no previous convictions - maximum penalty for offence $1,100,000 - offending conduct in the middle of the low range of seriousness - no previous convictions - maximum penalty $1,100,000 - appropriate starting penalty $120,000 - discount for guilty plea - guilty plea not at the earliest opportunity- discount of 10% for guilty plea - fine of $98,000 appropriate

TOTALITY AND ACCUMULATION - both offences arise out of same development consent - breaches arise from satisfying single asphalt supply contract - appropriate to moderate total penalty - fine for less egregious offence moderated to $60,000 - total penalty imposed of $600,000

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986, ss 257B and 257G

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Protection of the Environment Operations Act 1997

Cases Cited:

Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86

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

Caralis v Smyth (1988) 65 LGRA 303

Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51

Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185

Chief Executive Office of Environment and Heritage v Somerville (No 2) [2021] NSWLEC 78

Director-General of the Department of Environment and Climate Change v Rae (2009) 197 A Crim R 31; (2009) 168 LGERA 121; [2009] NSWLEC 137

Environment Protection Authority v Barnes (2006) NSWCCA 246

Environment Protection Authority v M A Roche Group Pty Ltd [2014] NSWLEC 114

Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158

Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25

Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131

Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419

Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242

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

LN v R [2020] NSWCCA 131

Markarian v R (2005) 229 CLR 357; [2005] HCA 25

Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271

Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246

Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12

Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178

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

R v O’Neill (1979) 2 NSWLR 582

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383

Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154

Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2017] NSWLEC 109

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] NSWLEC 182

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWCCA 74

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWLEC 136

Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24

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

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

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

Category:

Sentence

Parties:

Snowy Monaro Regional Council (Prosecutor)
Tropic Asphalts Pty Ltd (Defendant)

Representation:

Counsel:
Mr C Ireland, barrister (Prosecutor)
Mr T Hale SC/Mr D Robertson, barrister (Defendant)

Solicitors:
Bradley Allan Love (Prosecutor)
Thomson Geer (Defendant)

File Number(s):

381474 and 381475 of 2016

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The interlocutory proceedings

The charges

Introduction

The “production volume” charge

The “truck movement” charge

The Statement of Agreed Facts

The Company's guilty pleas

The sentencing hearing

Representation

The relevant statutory provisions

Introduction

The Environmental Planning and Assessment Act 1979 - offence provisions

The Environmental Planning and Assessment Regulation 2000

The Environmental Planning and Assessment Act 1979 designated development provisions

The evidence

Introduction

Exhibit F

The terms of Exhibit 3

The maximum penalty for the offence

The process for consideration of Sentencing Procedure Act matters

The Sentencing Procedure Act - aggravating factors

Introduction

Harm

Introduction

The Prosecutor’s submissions

The Company’s submissions

Consideration

Organised criminal enterprise

Introduction

The Prosecutor’s submissions

The Company’s submissions

Consideration

Financial gain

Introduction

The Prosecutor’s submissions

The Company’s submissions

Consideration

The Sentencing Procedure Act - the Company’s subjective factors

Introduction

Harm

Prior offences

The Company is a good corporate citizen

Likelihood of reoffending

The Company’s prospects of rehabilitation

Contrition and remorse

The Company’s guilty plea

The extent of assistance given to the Prosecutor

Characterisation of the Company’s offending conduct

Introduction

The “production volume” offence

The Prosecutor's submissions

The Company’s submissions

The “truck movement” offence

The Prosecutor's submissions

The Company’s submissions

Consideration

Introduction

The “production volume” offence

The “truck movement” offence

Comparability in sentencing

Introduction

The Prosecutor’s comparability submissions

The Company’s comparability submissions

Deterrence

The “production volume” offence

The “truck movement” offence

The application for a special finding on the “truck movement” offence

The Prosecutor’s submissions

The submissions on behalf of the Company

Consideration

The utilitarian value of the Company's guilty pleas

Consideration

Totality and accumulation

Costs

Orders

Judgment

Introduction

1. Tropic Asphalts Pty Ltd (the Company) was granted a development consent (the consent) by Cooma Monaro Shire Council (now amalgamated to be part of Snowy Monaro Regional Council - the Prosecutor) on 13 January 2015 for the installation and operation of a temporary asphalt batching plant at Rock Flat (about 14 kilometres south-east of Cooma). The plant was to be installed to supply asphalt to Roads and Maritime Services (the RMS) (although now known as Transport for New South Wales, it is appropriate to continue to refer to the body as the RMS) for road upgrade projects in the Snowy Mountains region.

2. The Prosecutor’s approval for the plant was subject to a number of conditions of consent. Further details of the Company's plant and its operations can be understood from the Statement of Agreed Facts (SOAF) settled by the Prosecutor and the Company and later reproduced in full.

The interlocutory proceedings

3. On 16 December 2016, the Prosecutor charged the Company with three offences alleging breaches of the conditions which had been attached to the approval for the installation and operation of the Company's plant. Each charge was laid pursuant to s 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) based on an asserted breach of s 76A(1)(b) of that Act (as its provisions were numbered as at the date of the Company’s offending conduct).

4. The Company challenged the validity of the three charges. On 25 August 2017, I held that one of the charges should be struck out and that the other two were duplicitous (with the Prosecutor to be given an opportunity to seek leave to amend the charges) (Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2017] NSWLEC 109 - Tropic No 1). The Prosecutor subsequently, unsuccessfully, appealed my decision (Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 - Tropic Appeal No 1).

5. At a subsequent hearing, the Council applied to amend the two remaining charges. I rejected the Prosecutor's proposal for multi-charge amendments but agreed to amendments to each charge - the amended charges alleging that the offending conduct occurred on a nominated date (the dates being different for each of the charges) (Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] NSWLEC 182 - Tropic No 2). The Prosecutor and the Company both unsuccessfully appealed against this decision (Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWCCA 74 - Tropic Appeal No 2).

6. After resolution of these preliminary procedural skirmishes, it remained necessary for me to determine the fate of a subpoena issued by the Prosecutor to the RMS. I upheld the validity of the Prosecutor’s subpoena (Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWLEC 136 – Tropic No 3). The Company unsuccessfully appealed this decision (Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24 - Tropic Appeal No 3).

7. These extensive interlocutory determinations and appeals explain why the prosecutions, commenced on 16 December 2016, for conduct occurring in January and March of 2015 are only now coming to be dealt with substantively.

The charges

Introduction

8. The two charges that the Prosecutor now relies upon were set out in (1) of the SOAF. The charges can conveniently be referred to as the “production volume” charge and the “truck movement” charge.

The “production volume” charge

9. The terms of the “production volume” charge (Matter No 381474 of 2016) are:

Between 20 January 2015 and 18 March 2015, at Rock Flat, Tropic committed an offence against s.125 of the Environmental Planning and Assessment Act 1979 (the EPA Act) in that, contrary to s.76A(1)(b) of the EPA Act, it carried out development, being the operation of a temporary mobile concrete batching plant otherwise than in accordance with the development consent, being DA 10.2014.391.1, by carrying out the development contrary to condition 4 of the development consent, which provided that the production of the plant must not exceed more than 150 tonnes (t) per day at any time during operations, and that on 31 January 2015, Tropic operated the plant to produce more than 150t.

The “truck movement” charge

10. The terms of the “truck movement” charge (Matter No 381475 of 2016) are:

Between 20 January 2015 and 18 March 2015, at Rock Flat, Tropic committed an offence against s.125 of the EPA Act in that, contrary to s.76A(1)(b) of the EPA Act, it carried out development, being the operation of a temporary mobile concrete batching plant, otherwise than in accordance with the development consent, being DA 10.2014.391.1, by carrying out the development contrary to condition 6 of the development consent, which provided that the number of trucks accessing and/or exiting the site was not to exceed twelve (12) per day, and that on 18 March 2015, Tropic operated the plant so that more than 12 trucks per day were accessing and exiting its site at any one time.

The Statement of Agreed Facts

11. On 22 July 2021, the Prosecutor filed a SOAF settled with the Company. The charges set out in (1) of the SOAF are reproduced above. The descriptive remainder of the SOAF (footnotes omitted) is in the following terms:

RMS Tender and Contract

2.   In late 2014 the NSW Roads and Maritime Services (RMS) invited tenders to supply asphalt for the improvement of the Snowy Mountain Highway and Kosciuszko Road Project (the Project).

3.   Prospective tenderers were informed that the Project would require the delivery of up to 500t of asphalt per day and that a total quantity of approximately 17,592t of asphalt would be required to be delivered in the contract period of 12 January 2015 - 27 February 2015.

4.   Tropic submitted a tender for the Project. Tropic proposed to locate a temporary asphalt batching plant at Schmidt Quarry, Nimmitabel. Tropic had previously operated a mobile batching plant at this site to supply asphalt under a previous RMS contract.

5.   Tropic’s business involves producing and laying asphalt. Tropic operates a network of fixed asphalt plants across NSW and Qld, together with mobile asphalt plants which can be operated throughout Australia.

6.   Tropic was selected as the preferred tenderer and the RMS issued Work Order No. 061 to Tropic on 22 December 2014. All of the asphalt for the Project was supplied by Tropic between 20 January 2015 and 18 March 2015.

The Council grants development consent

7.   On 19 December 2014, Tropic, through KHA Development Managers, submitted a development application (DA No. 10.2014.391.1) (the Application) to the predecessor of the Prosecutor, Cooma Monaro Shire Council (the Former Council), seeking consent for a temporary mobile asphalt batching plant, the Benninghoven Plant (the Plant), located at the southern end of lot 2 DP 825408 and known as No. 30 Springs Road, Rock Flat (the Land). A colour copy of a s.149 certificate for the Land is attached for clarity. Colour copies of the plans and photographs in the Statement of Environmental Effects (the SEE) at Exhibit MA1 pages 32, 33, 46, 60-61 showing the site, locality are attached for clarity.

8.   At all relevant times, the Land was within Zone RU1 under the Cooma-Monaro Local Environmental Plan 2013 (the LEP). A temporary asphalt batching plant was permitted with development consent on land within that zone.

9.   In support of the application Tropic submitted a SEE. The SEE stated that the plant would supply asphalt to the RMS for road works on the Snowy Mountains Highway and Kosciuszko Road. It also stated that, during the “contract period” of “3-4 months”, the Plant's anticipated typical annual production would not be more than 18,000t of asphalt and that the proposed maximum daily production would be 150t.

10.   On 13 January 2015, the Former Council granted consent to the Application for 4 months from the date of the Consent (ending 13 May 2015) (the Consent).

11.   The Consent was granted subject to the following conditions:

a.   condition 4, which states that the Plant’s asphalt production must not exceed 150t per day at any time during operations. The reason given in the Consent for the inclusion of this condition is that production above this threshold would result in the proposal being designated development and would require substantially more environmental impact assessment.

b.   condition 6, which states that the number of trucks accessing and/or exiting the site is not to exceed 12 per day at any one time. The reason given in the Consent for the inclusion of this condition is to ensure the traffic impacts from the development do not exceed SEPP 3 Guideline thresholds.

12.   Snowy Monaro Regional Council was constituted on 12 May 2016 pursuant to the Local Government (Council Amalgamations) Proclamation 2016 and is comprised of the Former Council, Snowy River Shire Council and Bombala Shire Council.

Operation of the Plant

13.   The way in which the Project operated involved the RMS team leaders calling Tropic the day before and requesting the total quantity of mix for the next day and to nominate the time for the first round of truck deliveries to be on site. Then each morning RMS staff would call Tropic and tell the plant manager when they wanted their next load. The site contact for the Tropic Asphalt Plant was Alan, the Plant Manager.

14.   Tropic used their own trucks for haulage and also engaged subcontractors to haul material to the RMS work sites.

15.   Once the material was delivered it was tipped into material transfer buggies or pavers and then either paved by Tropic or by the RMS, depending on the site.

16.   A document titled ‘quantity agreement sheet’ was completed for each active site most days that Tropic was supplying asphalt. The quantity agreement sheets identified the haulage distance, the supplying plant, the site to which the material was taken, the estimated quantity of asphalt that would be required and the actual amount delivered. The quantity agreement sheets were used to calculate the amount payable by the RMS under the contract.

17.   Delivery dockets are attached to the quantity agreement sheets. These state the tonnage of asphalt delivered by each truck to each site. The sum of all of the delivery dockets for a particular site and day should generally be equal to the quantity of asphalt recorded on the corresponding quantity agreement sheet.

Inspection and investigation by the Council

18.   On 2 February 2015, Mr Andrew Thaler attended the Council's office and spoke with Mark Adams, the Council's then Planning Manager, about the Consent.

19.   On 3 February 2015, in response to the questions and comments of Mr Thaler, officers of the Former Council carried out an inspection of the Land and the Plant. The officers observed a hot-mix plant of a design that matched the Benninghoven plant shown in the approved plans located at the southern end of the Land. In the course of carrying out the inspection, the Council’s then Planning Manager, Mark Adams, spoke to an employee of Tropic, the Plant Manager, Alan. The details of that conversation are set out in paragraph 14 of the affidavit of Mr Adams and in the file note at page 59 of Exhibit MA1. In summary, the plant manager, told Mr Adams that:

a.   “The Plant has produced about 650t of bitumen today.” He volunteered this without being specifically asked about the amount of bitumen that the Plant produced or had produced that day;

b.   He was not aware there was a condition of the development consent limiting the Plant’s daily production to a maximum of 150t per day.

c.    “On average the plant is producing around about 400t per day. We have had some other days besides today where the production has been well above that though”;

d.   “Up to 700t per day can be produced”;

e.   “We had 21 trucks come in today to move the 650t it produced”;

f.   “Each truck carries, on average, about 30t. That’s why I know we produced about 650t today because we had 21 trucks come in and go.”

20.   During the week commencing 9 February 2015, there were discussions between Geoff Cox of Tropic and Peter Smith, the Former Council's then Director of Environmental Services, regarding advice provided to Tropic by KHA Development Managers.

21.   On 16 February 2015, Mr Cox sent an email to Mr Smith, attaching a letter dated 13 February 2015, from KHA Development Managers to Tropic (Letter of Advice), which stated that, provided the:

a.   average daily production capacity did not exceed 150 tonnes; and

b.   the annual capacity is less than 30,000 tonnes,

it was KHA Development Managers' opinion that Tropic's use of the temporary mobile asphalt batching plant did not conflict with the intent of the Environmental Planning and Assessment Regulation 2000, such that it would be classified as a "designated development".

22.   On 16 February 2015, Mr Smith forwarded the Letter of Advice to Mark Adams, Edward Paterson, and Luke Perkins.

23.   On 4 March 2015, Mr Adams telephoned Adrian Walsh of the RMS to make further enquiries about Tropic's supply of asphalt to the RMS.

24.   The mobile asphalt plant operated by Tropic in the Cooma district pursuant to the Development Consent was dismantled and removed in the middle of May 2015. Since then, Tropic has conducted no business in that area.

25. On 3 September 2015, the Former Council issued a notice to provide information and records to RMS under then s.119J of the EPA Act.

26.   In response to that notice the RMS produced a number of business records. The Summonses commencing these proceedings were filed by the Council on 20 December 2016.

27.   On or about 11 January 2017, the Council issued a subpoena to the RMS. In response to that subpoena the RMS produced a number of business records. These included delivery dockets, each of which has an identifying ‘weighbridge ticket number’ and records the weight in tonnes of each delivery, as well as the progressive weight of material delivered each day.

28.   The delivery dockets disclose that:

a.   on 31 January 2015, that Tropic delivered 482.52 tonnes of asphalt from the plant to the site known as 'Site 4 Connors Hill'; and

b.   on 18 March 2015, 14 trucks left the site at which the asphalt plant operated.

29.   Tropic has no known prior convictions for an environmental offence.

12. Attached to the SOAF were the following documents:

• a planning certificate for the site as at 1 January 2015;

• extracts from a number of the local environmental plan’s maps showing the site;

• a regional context air photograph;

• a more localised context air photograph; and

• a close‑up, marked air photograph showing the location of the Company's plant on the site.

13. It is not necessary to reproduce these documents. Also attached to the SOAF were three photographs showing the plant during the period of its operation on the site.

The Company's guilty pleas

14. On 7 May 2021, the Company entered guilty pleas to the two charges. The charges to which the Company have pleaded guilty are strict liability ones. Mens rea (intention) plays no part and guilt is established by proof of the objective ingredients of the offences (Caralis v Smyth (1988) 65 LGRA 303 at 308). The Company’s pleas of “guilty” constitute admission of all the essential elements of the offence (R v O’Neill (1979) 2 NSWLR 582 at 588).

15. The extent to which the Company’s guilty pleas will act to moderate the otherwise appropriate penalties to be imposed is later addressed (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 (R v Thomson)).

The sentencing hearing

16. The sentencing hearing, arising from the Company's guilty pleas, was held on 18 and 19 October 2021. The hearing was conducted using Microsoft Teams software. There were no personal attendances and no oral evidence was required.

Representation

17. As has been the position throughout the various interlocutory hearings before me, the Prosecutor was represented by Mr C Ireland, barrister, and the Company by Mr T Hale SC and Mr D Robertson, barrister.

The relevant statutory provisions

Introduction

18. A wide range of statutory provisions is required to be considered as part of the sentencing process for the two offences to which the Company has pleaded guilty. Two areas within the structure of the EPA Act (as it was at the time of the Company's application to the Prosecutor for the consent for its temporary asphalt plant at Rock Flat and its subsequent operation of that plant in the fashion which, on 31 January 2015, gave rise to the “production volume” charge and, on 18 March 2015, gave rise to the “truck movement” charge) required to be considered.

19. Two separate aspects of the EPA Act are engaged. The first group of provisions comprises those creating the common statutory basis for the offences to which the Company has pleaded guilty and, thus, how the Company might be punished for that offending conduct. The second group of provisions comprises those dealing with the environmental assessment framework within which the Company’s development application for its temporary use of its asphalt plant installed at Rock Flat would have been assessed had the Company truthfully disclosed that the plant’s activities would have fallen within the parameters requiring the development application to be assessed as designated development.

20. To provide the appropriate definitional context for this second group of provisions of the EPA Act, it is appropriate to interpose the relevant provision from Sch 3 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) (as it was at the relevant time) defining the criteria which would cause the Company’s asphalt plant at Rock Flat to be regarded as designated development.

21. A number of provisions of the Crimes (Sentencing Procedure Act) 1999 (the Sentencing Procedure Act) also require to be considered and the relevant sections are also later set out.

22. Finally, provisions of the Criminal Procedure Act 1986 (the Criminal Procedure Act) are also engaged for the purposes of empowering me to require the Company to pay the Prosecutor's costs of the proceedings.

The EnvironmentalPlanning andAssessment Act 1979 - offence provisions

23. Although amendments to the EPA Act came into effect on 1 March 2015 (this being between the date of the “production volume” offence and that of the “truck movement” offence), the changes did not alter any of the provisions engaged for the purposes of the prosecutions of the Company.

24. It is appropriate to set out three of the provisions of the EPA Act (as at 19 December 2014) that provided the statutory vehicle for the laying of charges in each of these proceedings and the penalties for them. The first relevant provision is s 76A(1)(b), the provision that creates the restriction on conduct which the Prosecutor says has been breached in both of the instances being considered by me. This provision reads:

76A   Development that needs consent

(1)   General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a)   …, and

(b)   the development is carried out in accordance with the consent and the instrument.

25. The second relevant provision is that which creates the offence which arises should an individual or entity act contrary to the requirements of s 76A(1)(b). This provision, s 125(1), is not one which creates a specific, identifiable offence relating to the first set out provision but is one which creates an ambulatory offence addressing all potential transgressions arising from the breaching of other provisions of the EPA Act. This provision reads:

125   Offences against this Act and the regulations

Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

26. The relevant provision setting out the maximum penalty potentially available to be imposed for the Company's offending conduct for each offence is in the following terms:

126   Penalties

(1)   A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units.

(2)   A person guilty of an offence against the regulations is, for every such offence, liable to:

(a)   the penalty (not exceeding 1,000 penalty units) expressly imposed by the regulations, or

(b)   if no such penalty is imposed, to a penalty not exceeding 1,000 penalty units.

27. As can be seen above, the maximum penalty as at the date of the Company’s offending conduct for each of the offences to which it has pleaded guilty is described by nominating a maximum penalty denominated in penalty units. The value of a penalty unit, as at the dates in January and March 2015 of the Company’s offending conduct was set by s 17 of the Sentencing Procedure Act, a provision then in the following terms:

17   Penalty units

Unless the contrary intention appears, a reference in any Act or statutory rule to a number of penalty units (whether fractional or whole) is taken to be a reference to an amount of money equal to the amount obtained by multiplying $110 by that number of penalty units.

The Environmental Planning and Assessment Regulation 2000

28. It is appropriate to interpose, between the offence‑creating elements of the EPA Act and the provisions of that Act applying to designated development, the definition in cl 5 of Pt 1 of Sch 3 to the Regulation which sets out the criteria applicable to “bitumen premix and hot mix industries” that cause such activities to fall within the scope of designated development for the purposes of the provisions of the EPA Act set out in the next section of this recital of relevant statutory provisions.

29. The relevant provision for such industrial activity when classified as designated development is in the following terms:

5   Bitumen pre-mix and hot-mix industries

(1)   Bitumen premix or hot-mix industries (being industries in which crushed or ground rock is mixed with bituminous materials):

(a)    that have an intended production capacity of more than 150 tonnes per day or 30,000 tonnes per year, or

(b)   that are located:

(i)   within 100 metres of a natural waterbody or wetland, or

(ii)   within 250 metres of a residential zone or dwelling not associated with the development.

(2)   This clause does not apply to bitumen plants located on or adjacent to a construction site and exclusively providing material to the development being carried out on that site:

(a)   for a period of less than 12 months, or

(b)   for which the environmental impacts were previously assessed in an environmental impact statement prepared for the development.

30. It is to be noted that, had the Company's development application truthfully disclosed the necessary production volumes required to be generated by the Company for the purposes of fulfilling its contract with the RMS, the Company's mobile asphalt plant operation, the subject of these proceedings, would have fallen more than comfortably within the scope of the above definition - thus necessitating the Company's development application to be dealt with in accordance with the provisions of the EPA Act set out below.

The Environmental Planning and Assessment Act1979 designated development provisions

31. Four other relevant provisions of the EPA Act (as that Act was at 19 December 2014) require to be considered because these are the provisions which would have been engaged for the assessment of the Company’s development application to the Prosecutor had the Company lodged an application which truthfully disclosed the extent of the Company’s proposed operations at Rock Flat of the asphalt plant in order to fulfil the contract with the RMS. These provisions were in the following terms:

77A   Designated development

(1)   Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations.

(2)   Designated development does not include State significant development despite any such declaration.

78A   Application

…

…

(8)   A development application (other than an application in respect of State significant development) must be accompanied by:

(a)   if the application is in respect of designated development—an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations, or

(b)   …

79   Public participation—designated development

(1)   Public exhibition and notification As soon as practicable after a development application is made for consent to carry out designated development, the consent authority must:

(a)   place the application and any accompanying information on public exhibition for a period of not less than 30 days (the submission period) commencing on the day after which notice of the application is first published as referred to in paragraph (d), and

(b)   give written notice of the application in accordance with the regulations:

(i)   to such persons as appear to it to own or occupy the land adjoining the land to which the development application relates, and

(ii)   if practicable, to such other persons as appear to it to own or occupy land the use or enjoyment of which, in its opinion, may be detrimentally affected if the designated development is carried out, and

(iii)   to such other persons as are required to be notified by the regulations, and

(c)   cause notice of the application to be exhibited in accordance with the regulations on the land to which the application relates, and

(d)   cause notice of the application to be published in accordance with the regulations in a newspaper circulating in the locality.

…

(4)   Inspection of application and accompanying information During the submission period, any person may inspect the development application and any accompanying information and make extracts from or copies of them.

(5)   Making of submissions During the submission period, any person may make written submissions to the consent authority with respect to the development application. A submission by way of objection must set out the grounds of the objection.

…

80   Determination

…

…

(9)   Restrictions on determination of development applications for designated development A consent authority must not determine a development application for designated development:

(a) until after the submission period (within the meaning of section 79 (1) (a)) has expired, or

(b)   if a submission is made with respect to the application within the submission period, until after 21 days following the date on which a copy of the submission is forwarded to the Secretary have expired.

(10)   Subsection (9) (b) does not apply:

(a)   to a consent authority being the Minister or the Secretary, or

(b)   if the Secretary has waived the requirement that submissions be forwarded to the Secretary for a specified development application or for a specified class of development applications.

The Crimes (Sentencing Procedure) Act 1999

32. A number of provisions of the Sentencing Procedure Act require consideration. The first of these is s 3A, the provision that sets out the objects of the Act explaining the purposes for which sentencing is undertaken. This 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.

33. The next elements of the Sentencing Procedure Act are those contained in s 21A of that Act which are relevant to this offending conduct or to the Company. The provision contains, in s 21A(2), those elements which can, if proved beyond reasonable doubt, give rise to a finding that the offending conduct was carried out in circumstances of aggravation. It also contains, in s 21A(3), a range of subjective factors potentially applicable to the Company that require to be considered where relevant.

34. The relevant elements of s 21A of the Sentencing Procedure Act, potentially or actually engaged for my sentencing assessment of this Company, will each require separate consideration. The relevant portions of the provision are set out below:

21A   Aggravating, mitigating and other factors in sentencing

(1)   ...

(2)   Aggravating factors

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

...

(g)   the injury, emotional harm, loss or damage caused by the offence was substantial,

…

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

(o)   the offence was committed for financial gain,

(3)   Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

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

(b)   ...,

(c)   ...,

(d)   ...,

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

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

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

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

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

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

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

(j)   ...,

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

(l)   ...

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

(n)   ...

35. The third element of the Sentencing Procedure Act engaged by these proceedings is s 22, a provision which mandates that I have positive regard to the entry by the Company of its guilty plea and the utilitarian value that the entry of that plea has had for the administration of justice. This provision is in the following terms:

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

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

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

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

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

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

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

(2)   ...

(3)   ...

(4)   ...

(5)   ...

36. It is also necessary to set out the relevant elements of ss 10 and 10A of the Sentencing Procedure Act. These are the provisions which Mr Hale submitted were appropriate, as alternatives, to be engaged for the purposes of sentencing the Company for the “truck movement” offence. One or other of these provisions was appropriate to be applied, he proposed, because of what he submitted (as later discussed) was the comparatively minor nature of the Company's offending conduct in committing the “truck movement” offence on 18 March 2015.

10   Dismissal of charges and conditional discharge of offender

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

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

(b)   …,

(c)   …

(2)   …

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

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

(b)   the trivial nature of the offence,

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

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

10A   Conviction with no other penalty

(1)   A court that convicts an offender may dispose of the proceedings without imposing any other penalty.

(2)   …

The Criminal Procedure Act 1986

37. The costs-ordering provisions contained in ss 257B and 257G of the Criminal Procedure Act are engaged in order to permit me to order that the Company is to pay the Prosecutor's costs of these proceedings. It is not necessary to reproduce the terms of any provisions of this legislation; it is sufficient to note that they provide a proper statutory foundation for me making an appropriate costs order.

The evidence

Introduction

38. The evidence was entirely documentary. After resolving objections to various elements of the affidavit evidence proposed to be read by the Prosecutor, the affidavits listed below were read in a fashion where some paragraphs, or parts of paragraphs, were either not read or rejected on objection pressed by Mr Hale. It is not necessary to detail the nature of the elements that were removed or rejected. However, it is appropriate to note that material referenced in the affidavit of Mr Adams was removed from it and marked for identification, becoming “MFI A” and a schedule prepared by Ms Menyhart relating to production volumes and truck movements was also removed from being annexed (as Annexure C) to her affidavit and marked for identification, becoming “MFI B” (together with paragraph 7 of her affidavit). The affidavits read by the Prosecutor on this basis were:

• an affidavit of Mark Adams, the Prosecutor’s Planning Manager, dated 14 December 2016;

• an affidavit of Alice Menyhart, solicitor for the Prosecutor, dated 23 April 2021;

• an affidavit of Edward Patterson, an officer of the Prosecutor, dated 8 December 2016; and

• an affidavit of Adrian Walsh, the RMS’s Works Manager, dated 31 October 2016.

39. Two further affidavits proposed to be read by the Prosecutor were rejected in their entirety.

40. The further material tendered by the Prosecutor comprised:

• three volumes of the Court Book (Exhibits A, B and C);

• the affidavit of Mr Claude Sibaud sworn 6 August 2019. Mr Sibaud was a Group Assets, Plant and Equipment Manager of Colas Australia Group Pty Ltd, the parent company of the Company. This affidavit became Exhibit D;

• the SOAF (Exhibit E); and

• items 6 and 41 of the table annexed to the affidavit of Ms Alice Menyhart of 23 April 2021, which table had, in its entirety, been marked for identification as “MFI B”. These two items became Exhibit F.

41. The evidence tendered on behalf the Company comprised:

• the development application to the Prosecutor made on behalf of the Company had been made by a Queensland‑based town planning consultancy known as KHA Development Managers (KHA). Material extracted from the Court Book providing information about KHA, taken from the “About us” and “Our team” pages of KHA's website, comprised Exhibit 1;

• the Company's Notice to Produce addressed to the Prosecutor dated 16 September 2021 became Exhibit 2. It is to be noted that, in response to this Notice to Produce, the Prosecutor did not produce any documents; and

• an undated copy of a circular letter signed by three persons describing themselves as directors of Colas New South Wales Pty Ltd and addressed to “Dear Sir/Madam” and headed “New South Wales Operations Update” became Exhibit 3.

42. During the course of the sentencing hearing, only limited material contained in Exhibits A, B and C were the subject of specific reference in the written or oral submissions on behalf of the Prosecutor or the Company. That material will be referenced, as necessary, later.

43. No oral evidence was necessary for the purposes of the sentencing hearing.

Exhibit F

44. As noted above, an affidavit of Ms Menyhart, deposed on 23 April 2021, was read by the Prosecutor (other than paragraph 7). Attached to that affidavit, as Annexure C, was a table of analysis done under her supervision of truck movements and delivered quantities on each of the 41 days during which the Company's plant operated supplying asphalt in fulfilment of its contract to the RMS. The entries were said to be taken from the individual loading dockets in evidence.

45. Mr Hale had objected to this annexure forming part of the evidence, on the basis that there was no independent verification of its accuracy. I agreed to defer consideration of whether I would accept it (in part depending on the extent to which I might be able to have the contents independently verified). This annexure was therefore marked for identification and became “MFI B”, as earlier noted.

46. During the course of the hearing, it seemed to me that the elements of “MFI B” which related to 31 January 2015 (the material at item 6 in the table and relating to the “production volume” charge) and that which related to 18 March 2015 (the material at item 41 relating to the truck movements charge) might have been appropriate to be admitted. I asked Mr Hale whether he had any objection to those elements of “MFI B” being admitted. He indicated that he did not. As a consequence, the elements of “MFI B” relating to 31 January 2015 and 18 March 2015 became Exhibit F. This exhibit was admitted without qualification or restriction. Images of the two elements in Exhibit F are reproduced below:

The terms of Exhibit 3

47. I have noted above the nature of the document that became Exhibit 3 tendered on behalf of the Company. This document was in the following terms:

New South Wales operations update

It is our pleasure in notifying you that as of 1 January 2019 the Tropic Asphalt Pty Ltd will be under the ownership and operation of Colas New South Wales Pty Ltd.

All future requests for asphalt and other bitumen products must be made to Colas New South Wales.

Tropic will continue to operate in the new year only to complete existing contracts.

48. Exhibit 3 concluded by setting out the contact details for the NSW General Manager of Colas and the photocopied signatures of the three persons describing themselves as directors of Colas New South Wales Pty Ltd.

49. Exhibit 3 was admitted over objection from the Prosecutor on the basis that it was a business record of Colas New South Wales Pty Ltd.

The maximum penalty for the offence

50. The maximum penalty for a corporation for this offence is $1,100,000 - 10,000 penalty units (a penalty unit being $110 as set by s 17 of the Sentencing Procedure Act as then applying).

51. The maximum available penalty is to be taken as being the legislature’s understanding and reflection of contemporary community standards concerning the offences involved (Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 at [33]). The size of the penalty also “indicates the gravity of the offence as perceived by the community”: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (Camilleri’s Stock Feeds) at 698.

52. The maximum penalty is significant in determining the objective seriousness of the offence: Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [57]. The maximum penalty demonstrates the seriousness with which the offence charged is viewed (Camilleri's Stock Feeds also at 698).

The process for consideration of Sentencing Procedure Act matters

53. Before turning to detail of the various matters arising pursuant to ss 21A(2) and (3) of the Sentencing Procedure Act potentially here engaged, it is appropriate to make a brief general observation concerning how these matters are to be approached. This is necessary because the burden of proof differs, depending on the nature of that which requires consideration.

54. For the purposes of establishing any potential factor of aggravation, I must conclude that such factor is proved beyond reasonable doubt against the Company.

55. On the other hand, for favourable subjective factors applicable to the Company (including those matters potentially arising from s 21A(3)), it is only necessary for the Company to establish that factor on the balance of probabilities (R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (R v Olbrich) at 281).

The Sentencing Procedure Act - aggravating factors

Introduction

56. The Prosecutor pressed that there were three factors of aggravation demonstrated by the Company’s offending conduct. The first of these was that the Company’s disregard for the requirement to comply with the conditions of the consent amounted to significant harm to the environmental planning system established by the EPA Act. The second factor of aggravation proposed by the Prosecutor as being demonstrated by the Company’s offending conduct was that that conduct amounted to an organised criminal activity. Finally, the Prosecutor submitted that the Company’s offending conduct was committed for financial gain.

57. All three of these factors, the Prosecutor proposed, were established to the necessary standard on the evidence in the proceedings.

58. Unsurprisingly, the position advanced on behalf of the Company was that none of these factors arose out of, or were established by, the Company’s offending conduct for either offence.

Harm

Introduction

59. The Prosecutor submitted that I should conclude, to the necessary standard, that the Company had caused significant harm (by damage to the planning system), this being a factor of aggravation if established (s 21A(2)(g) of the Sentencing Procedure Act).

60. In this context, harm not only encompasses any physical consequences of a defendant's offending conduct, but can also encompass damage to any regulatory system or framework that would otherwise be expected to regulate the offending conduct of that defendant. It is in this latter context that the Company's offending conduct requires to be assessed.

The Prosecutor’s submissions

61. First, it is to be observed that the Prosecutor conceded, properly, that (Transcript 18 October 2021, page 11, lines 26 to 29):

… it’s not the prosecution’s contention that there was any environmental harm associated with the offending on the two charge days, if there was then it consists of additional truck movements across these distances to these sites.

62. However, despite that concession, the Prosecutor submitted that the Company’s offending conduct constituted a significant assault on the integrity of the planning system established by the EPA Act. Although primarily addressed, as can be seen from the transcript extract below concerning how the seriousness of the Company’s offending conduct should be characterised for the assessment of the appropriate penalties to be imposed, nonetheless, these oral submissions are apt to be considered in the context of this potential factor of aggravation. The Prosecutor submitted (Transcript 18 October 2021, page 29, lines 1 to 19):

Where a proponent represents that a development project will not trigger the designated development assessment requirements then as a result development consent is granted without any layers and the associated public participation. It then proceeds in a wholesale and paradigm way as occurred in this case to thumb its nose at that limitation that would have triggered the development assessment requirements. That cuts across the heart of these objectives of the EPA Act of ensuring that there is proper public participation in the process of approval of developments of this type and that lies at the core of the seriousness of the offending here and indeed there are cases where, as here, there is no physical environmental harm that has been caused by such offending but where the seriousness of the breach of such limitations is made clear in the sentencing process and I’ve given your Honour the decision of Biscoe J in the Coalpac case 2008 NSWLEC 271 and at para 37 of that judgment his Honour in a case where there was harm to the regulatory system, as there has been here, categorising the offence as a serious one and the imposition of a significant penalty, whatever that may be, even in the absence of any particular physical environmental harm and in that case it was observed that the only environmental impact was that regulatory impact or the lost opportunity for environmental assessment.

63. The Prosecutor addressed factors to be taken into account when considering the extent of the Company’s disregard for the requirements of the planning system, set out in a number of paragraphs of the Prosecutor's written submissions. These paragraphs, relevantly, explained the significance of the breached conditions, particularly condition 6.

64. First, the Prosecutor’s written submissions, at paragraph 4, said:

4. The reasons for condition 4 record (see its text at AF [11]), the 150 t per day limit was imposed because this is the designated development threshold for the development, being a bitumen pre-mix or hot mix industry: Clause 4 and Item 5(1)(a), Schedule 3, Environmental Planning and Assessment Act Regulation 2000 (EP&A Regulation).

65. Next, the Prosecutor’s written submissions, at paragraphs 8 and 9, said:

8.   In a letter sent on behalf of the Defendant, it was asserted that provided the average daily production did not exceed 150 t, there would be no conflict with the “intent” of the EP&A Regulation and the development would not be classified as designated development: Exhibit MA1 page 64. This was incorrect, but the letter demonstrates an understanding of the limitation to 150 t per day; it is an attempt to explain it away.

9.   The Defendant’s SEE discloses that it was aware that State Environmental Planning Policy No. 33 - Hazardous and Offensive Development (SEPP 33) applied to the Site and that the proposed development had the potential for significant off-site impacts: Exhibit MA1 page 29. The development was a ‘potentially offensive industry’ under SEPP 33. The SEE stated that ‘Maximum daily output (150 t per day) is expected to generate up to 12 truck movements and 4 car movements’: Exhibit MA1 page 37.

66. Finally on this point, the Prosecutor’s written submissions, at paragraphs 17 and 18, said:

17.   The Defendant’s conduct in disregarding the conditions of the Consent completely undermined the legislative scheme of regulation of development by the grant of development consents subject to conditions. Further, it constituted the carrying out of what was in fact designated development in circumstances where consent for that category of development had not been sought. The Defendant’s development application had not been assessed as designated development.

18.   The Development was a potentially offensive industry for the purpose of SEPP 33. condition 6 was imposed specifically to manage the traffic impact of the development. Breaching it ran contrary to that objective.

67. The Prosecutor also pointed out that, on an earlier occasion when the Company had been granted a consent for a temporary asphaltic plant within the Prosecutor's local government area, a condition to the same effect as condition 4 had been imposed. The consequence of this was that the Company was aware, before applying for the consent giving rise to these proceedings, of the existence of such a condition limiting production in the same fashion as the condition that the Company subsequently breached. On this point, Prosecutor’s written submissions, at paragraph 26, said:

26. The Defendant had familiarity and experience with the consent process. Prior to the grant of the Consent, the Defendant operated the same kind of plant at another location the ‘Schmidt Quarry’: Affidavit of Mark Timothy Adams dated 14 December 2016 at [24]. That development consent was also subject to a 150t limit imposed for the same reason as condition 4 was, to ensure the designated development threshold was not exceeded: see condition 6 of Development Consent 59/10/DA, Exhibit MA1 at 263.

The Company’s submissions

68. Although an observation made in the context of contrasting the Company’s offending conduct for sentencing purposes with that which had arisen in Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271 (Coalpac), Mr Hale embraced, by implication, the concession made by the Prosecutor as earlier set out that there had not been any actual environmental harm arising from the Company’s offending conduct, saying (Transcript 19 October 2021, page 97, lines 9 and 10):

The offence did not cause any substantive harm to the environment.

69. To the extent that Mr Hale's oral submissions responded to these concerns, he sought to deflect responsibility for this breaching of the statutory environmental planning regime onto the planning consultants who had prepared and lodged the Company’s development application, submitting (Transcript 19 October 2021, page 59, lines 3 to 30):

HALE: … if you go to p 11 you’ll see the development application and you will see name of company, Tropic Asphalts, contact PO KHA Development Managers which you see are in Queensland. Now, just pausing there for the moment, what it is clear has happened in the interim sorry after the order, is that the defendant has engaged KHA Development Managers to prepare the development applications for it and to advise it and which your Honour will remember from yesterday. vol 3 tab 15, the last two documents about KHA Development Managers.

…

HALE: You will see beginning this is - with more than 35 years as trusted advisers to development and construction industries, offering clients integrated services, town planning, project and development management and efficient preparation of development applications, thorough knowledge with working relationships with Local Government industry, refers to high quality standards, values and the third page or what had previously been tab 16, it’s about us. And one of the names that comes up on the letters is Scott Sobey, director planning manager Sunshine Coast, development assessment coordination, particular skills in town planning. So they profess to be experts in the field including update and engaged for their expertise and relied upon and we can see some of the other personnel that it is an organisation which expresses some expertise.

70. In this regard, paragraph 41(e) of the written submissions for the Company was in the following terms:

(e)   On 16 February 2015, one of the defendant’s employees, Geoff Cox, sent an email to Peter Smith, Council’s Director of Environmental Services, which attached a letter dated 13 February 2015 prepared by Scott Sobey, Director of KHA, which stated inter alia:

“It is now understood that due to the actual nature of the operations and supply contract, the daily production capacity varies and at times exceeds 150 tonnes, however the annual production capacity of the plant will not exceed 30,000 tonnes. In this regard provided the average daily capacity does not exceed 150 tonnes and the annual capacity is less than 30,000 tonnes, it is our opinion that the use does not conflict with the intent of the Regulation such that it would be classified as ‘designated development’.

Should you have any questions with respect to the above, please do not hesitate to contact me direct.”

71. Mr Hale later returned to the letter from KHA, the Company’s consultant town planners, submitting (Transcript 19 October 2021, page 68, line 20 to page 69, line 16):

HALE: What then has clearly occurred if we go to p 62 at the bottom of the page is an email from Jeff Cox of Tropic to Peter Smith of the council. We know Peter Smith is from the council because if we look at the top of the page.

HIS HONOUR: Yes.

HALE: And he is director of environmental services. What has clearly followed on from the inspection on the 3rd and the enquiries that have been made of the RMS is a discussion for meetings or discussions between the council and the defendant about the apparent breach. And you’ll see, please find advice from KHA Development Managers re our discussions last week. So that refers to the discussions as I say, that’s obviously following up their concern about breach. And contact KHA’s Glenn Wright, here’s his number clearly an invitation to contact him. And my understanding is that he’s on annual leave this week I hope this is of assistance if you have any questions please call.

So the defendant is there doing is as you will see is has engaged KHA to respond to the concern, offers to the council that they contact KHA directly. He says, If you have any questions please call. And as we know they never did. So we have here from the very beginning of the enquiries that began on 2 February an openness on behalf of the defendant, full cooperation.

Then when we go to the KHA letter and as we say, this was - if we go to p 65, it begins at p 64. So at p 65 we see it’s written by Scott Sobie, director. I refer back to the third paragraph, I refer to our recent discussions regarding council’s concerns that the approved temporary mobile asphalt plant may be designated development if it exceeds a daily production in the capacity of 150 tonnes.

That as will be apparent is a summary of what the discussions had been the previous week in which Mr Cox is referring, it was about it being perhaps designated development. And, of course, condition 4.

HIS HONOUR: The works, the words “maybe” is an evaluative statement put on behalf of KHA, it’s not a correct statement of the law, is it, because it is not a maybe designated, it is designated.

HALE: I’m not arguing with that. I’m not arguing with that. The point is, it’s like as Preston J found in one of the cases in which we’ll take you, there was a breach and the breach was the defendant did not understand it would constitute a breach because of the wrong advice that came by the lawyer. So I’m not here seeking to argue that what KHA said was correct but rather this was the advice that the defendant was obtaining from KHA and which the defendant then passed on to the council saying that you can contact KHA directly or you can contact us. Then it refers to the particular provision in schedule 3 of the regulations.

72. The decision of Preston CJ referred to by Mr Hale, in the last paragraph of the above transcript extract, is Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86 (Bay State Construction). Mr Hale returned to his Honour’s decision later in the hearing during the exchange set out below (Transcript 19 October 2021, page 82, line 33 to page 83, line 39):

Although I’ll come back to it it might be useful if I begin by taking your Honour to Bay State which is 23 NSWLEC and in particular 68. What is contained at para 68 is we submit of particular relevance but for present purposes having regard to what we say about AHA and you will see that there in 68 that the finding was that the council had not proved beyond reasonable doubt it committed the offences with any heightened state of mind.

Here the council did allege that the penalty infringement notices were committed intentionally, that’s what’s in our particular case but the council did not prove that it committed the offences recklessly or negligently but then what it goes on to point out is that the legal advice that was relied upon - now, what happened in this particular case was signs on a crane and the approach taken by the legal advisers for Bay State was that the council was wrong and therefore there was no obligation to remove the signs and as a consequence there were a number of repetitions of what was said to be the offence as they didn’t take them down and the finding, as your Honour sees, the legal advice proved to be incorrect but this did not mean that Bay State acted recklessly or negligently in relying on the legal advice.

Here it is also alleged that if it committed the offence intentionally it would follow that in such circumstances that there was legal advice so there was advice from the planners, incorrect as it was, that led to the lodgement of the development application in circumstances and I won’t repeat what I said before other than to say in circumstances where on a proper construction of the proposed development it would have been designated development.

HIS HONOUR: What we have here are representations to the council rather than advice to your client, isn’t that the case?

HALE: Well, inferentially it’s also obviously not--

HIS HONOUR: Nor is it legal advice, nor is it given in definite terms.

HALE: It was advice, I said this before, it was the defendant engaged a reputable organisation to obtain the development consent that was necessary.

HIS HONOUR: On what basis do I conclude it’s a reputable organisation. All I’ve got is puffery in exhibit 1.

HALE: Well, it’s in for all purposes and here what we’re dealing with, as I’ve made the point many times, this is--

HIS HONOUR: Clive Palmer’s political party puts stuff on its website. It may be in for all purposes, I readily accept that, but that doesn’t necessarily mean that any purpose to be derived from self-serving advertising material demonstrate that it’s a reputable organisation, does it?

HALE: On the face of it it is an organisation with some experience which promotes itself in that particular way and also it had lodged the development application for the quarry some years before and the point about it is because the onus is on the council to establish these matters beyond reasonable doubt it has to be established that the conduct of the defendant was deliberate or negligent or involved, to use the language, the planned organised criminal activity when it’s seen against the context of the application being lodged on behalf of the defendant by these planners and the point is much the same.

Consideration

73. For the purposes of considering this potential factor, it is to be observed that the concept of harm extends beyond actual harm (whether occasioned or foreseeable) but also extends to the broader concept of harm to the statutory scheme established by the EPA Act which regulates the conduct that has been found to be offending. It is in this second context that the Company's offending conduct be assessed.

74. The transcript of 19 October 2021 (between page 74, line 3 and page 75, line 20) discloses that I had an exchange with Mr Hale as to the extent to which he proposed that the Company had relied upon KHA and that, therefore, there was no deliberate breach by the Company because the Company had relied upon its planner’s advice. It is not necessary, for present purposes, to repeat this extract from the transcript. It was, however, the precursor to a further element that is necessary to reproduce. This continuation of my exchange with Mr Hale was in the following terms

HIS HONOUR: Well isn’t it also the position that I might not even need to get to this at all if I am satisfied that your client had a development consent that had a specified limit in it that your client was in possession of that development consent as you have conceded and that compliance of the development consent was fundamentally incompatible with compliance with the tender that your client, not the consultant’s, held out to the RMS they were capable of fulfilling and that’s quite independent from the application to the Council is it not.

HALE: That is but your Honour can’t take that last step because at the end of the day your Honour has to be satisfied on the criminal onus.

HIS HONOUR: I understand that and that permits me to have regard to circumstantial evidence provided I am satisfied to that standard.

HALE: Which involves, amongst other things, the circumstantial evidence, the role of the planner and the reliance on the planner. It involves--

HIS HONOUR: No no but that’s circumstantial evidence with respect to the development consent. There’s no suggestion that the planner had any role whatsoever in the contract offer that your client made, the tender that your client made to the RMS which after it receives its development consent with the limiting condition in it a consent which imposes on your client and obligation to comply with the consent your client knew from that time onwards, and particularly on 31 January 2015, it was incapable of complying with the conditions of the development consent and did not do so. None of that has anything to do with the planners does it.

HALE: There is no evidence to support that at all and yes it does deal with the planners because the development consent was clearly based upon the contract that had been entered into, or at least in the work order. It is clear that my client was relying upon the planners. It is also clear that the planners obtained a development consent on behalf of my client. It is clear also that the planners, having obtained a development consent, must have sent it onto my client. It is also clear that the planners, judging by this letter, had an erroneous view, Mr Pacal(?) the consent was to operate.

HIS HONOUR: I understand that but none of that is relevant is it to the fact that your client had a consent with a limiting condition in it. It did not comply with it. It never complied with it and more importantly it was never going to be capable of complying with it - with the exception of the last day - made no attempt to comply with it.

75. I have earlier noted that Mr Hale relied on the decision of Preston CJ in Bay State Construction to provide a basis for his blame‑shifting submissions concerning the advice from KHA. Four paragraphs from his Honour’s decision are relevant in this context. The first two are [37] and [38], where his Honour set out the submission from Bay State Construction concerning its reliance on legal advice. The paragraphs are in the following terms:

37   Bay State submitted that the Council had not proved that Bay State’s commission of the offences was reckless or negligent. The position may be contrasted with that in Pesic v Sutherland Shire Council [2019] NSWLEC 38 where the offender was reckless in failing to obtain legal advice as to the lawfulness of his actions (at [30]). In the present case, after the Council had sent Bay State a letter before issuing the first penalty infringement notice, Bay State sought legal advice and responded to the Council with that legal advice that displaying the advertising sign on the crane was lawful. As events transpired, the legal advice that Bay State had received was incorrect. But that did not make Bay State’s actions of allowing the advertising sign to remain, acting on that legal advice, either reckless or negligent.

38   As to the foreseeability of the risk of harm and the practical measures that could be taken to prevent or mitigate that risk of harm, Bay State reiterated that it did seek legal advice and that it acted on that advice. Bay State thought that it was complying with the law and planning system.

76. In [64], his Honour explained why the impact on the integrity of the planning system was minor. His Honour said:

64   The objective harmfulness of Bay State’s commission of the offences is relevant to determining the seriousness of the offences. The mere commission of the offence of carrying out prohibited development did interfere with the integrity of the system of planning and development control. However, the degree of interference in this case is minor. A sign stating the name of the builder who was constructing the approved residential development on the site was affixed to an on-site tower crane being lawfully used to carry out that development. That sign was found by the Local Court to be an advertisement or business identification sign, both of which were prohibited on land in the relevant residential zone. That unlawful development was minor in the context of the otherwise lawful development being carried out on the land.

77. In [68], the paragraph to which Mr Hale took me, his Honour said:

68   … However, Bay State acted reasonably in seeking legal advice as to whether the Council’s position was legally correct. The legal advice that Bay State received was that the Council was incorrect. Bay State acted on the legal advice it had received and left the sign on the crane. As events transpired, the legal advice proved to be incorrect but this did not mean that Bay State acted recklessly or negligently in relying on the legal advice.

78. The Company's offending conduct is to be contrasted with the circumstances arising in Bay State Construction. First, and principally, the advice from KHA was not legal advice but merely that from a planning consultancy. KHA do not hold themselves out as lawyers, nor does the author of the letter to the Council hold himself out as having any engagement with, or expertise in, the New South Wales planning system (vide Exhibit 1).

79. Second, in Bay State Construction, the advice was received in response to enforcement activity having been taken against that company, with the result being a Local Court hearing leading to convictions with the appeal to this Court being against the severity of the penalties imposed below.

80. The circumstances here do not enable the Company to draw any comfort from the decision in Bay State Construction.

81. I now turn to those matters requiring consideration in the circumstances here engaged.

82. The objects in the EPA Act, as at the dates of the Company’s offending conduct, were, relevantly:

5   Objects

The objects of this Act are:

(a)   to encourage:

(i)   …,

(ii)   the promotion and co-ordination of the orderly and economic use and development of land,

(iii)   …,

(iv)   …,

(v)   …, and

(vi)   …, and

(vii)   …, and

(viii)   …, and

(b)   …, and

(c)   to provide increased opportunity for public involvement and participation in environmental planning and assessment.

83. The legislative scheme enshrined in the EPA Act in support of its objects requires that the integrity of the system of planning is not subverted, irrespective of whether or not any actual environmental harm is caused by the offending conduct (Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12 at [46]; and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [104]-[105]).

84. In Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 (Boggabri), at [17] and [18], Preston CJ observed:

17 One of the principal means by which these objects [(of the EPA Act)] are achieved is by the Act controlling the carrying out of development depending on its likely impact on the environment. Environmental planning instruments specify the purposes for which development may be carried out without development consent or only with development consent and for which development is prohibited. A person wishing to carry out development that may be carried out only with development consent must lodge a development application with the relevant consent authority for development consent to carry out that development. …

18   There is a need for the upholding of the integrity of the system of planning and development control. The system depends on persons taking steps to obey the law by ascertaining when development consent is required, obtaining development consent when required, and carrying out development in accordance with any development consent obtained. (citations omitted)

85. The circumstances here involved are ones where the breach of the Company’s consent concerning its daily production volume was drawn to the Company's attention on 3 February 2015 (albeit after the date of the conduct founding the “production volume” charge) in circumstances where all that was advanced on the Company's behalf by KHA was that it was complying with the “intent” of the legislative regime which applied. This statement, in itself, constitutes necessarily an admission that the Company's adviser accepted that the condition of consent was, in fact, being breached but that the self-serving excuse warranted it being ignored.

86. It is also relevant to observe that the evidence later discussed at [109] to [117], where the various delivery dockets that I have determined are to be admitted, clearly demonstrates that, although being aware of the breach of the condition of consent and the reason for its imposition, the Company continued to ignore it.

87. The harm to the planning system established by the EPA Act here clearly falls within the scope of harm as envisaged by s 21A(2)(g).

88. The nature of the damage, by avoiding the necessity to make a development application which would have been for designated development and thus engaging the more rigorous environmental assessment regime required and the mandated necessity for the statutory period for public comment, can only be regarded as being both significant and egregious.

89. I am satisfied that the Prosecutor has, for the above reasons, established this factor of aggravation to the necessary standard.

Organised criminal enterprise

Introduction

90. The Prosecutor also submitted that I should conclude that the Company's offending conduct was carried out as part of an organised criminal enterprise. Such a finding, if made by me, would constitute a further factor of aggravation - one pursuant to s 21A(2)(n) of the Sentencing Procedure Act. If I was to conclude that this proposition was established, this would constitute a further factor adverse to the Company requiring to be taken into account in my instinctive synthesis of the appropriate penalties to be imposed on the Company for each of the two offences to which the Company has entered guilty pleas.

91. I therefore now turn to set out the submissions on, and my conclusion concerning, this proposition advanced by the Prosecutor.

The Prosecutor’s submissions

92. The Prosecutor submitted that the Company’s repeated and systematic breaches of conditions 4 and 6 of the consent supported the inference that its conduct was carried out as a planned or organised criminal activity. In particular, the Prosecutor submitted that the offence was part of an “organised” criminal activity, in the sense that the breaches of the conditions of the consent occurred repeatedly over a period of time and that this system of breaches could only be explained by the fact that the Company had contracted to deliver and produce asphalt at a level that ensured the offending breaches would necessarily take place (Transcript 18 October 2021, page 40, line 41 to page 41, line 13).

93. In support of this proposition, the Prosecutor submitted that delivery dockets showed that the Company had exceeded the 150‑tonne‑per‑day limit imposed by condition 4 on all but one day of the plant’s operation. The Prosecutor noted that production exceeded 400 tonnes on 20 days and 600 tonnes on 10 days, and reached a peak of 727.43 tonnes on 12 February 2015. It also advanced that the 12‑truck‑per‑day limit imposed by condition 6 was complied with on only six out of 41 production days (written submissions, paragraphs 40 to 43).

The Company’s submissions

94. The Company submitted that I should not find that it had committed either offence as part of a planned or organised criminal activity. In its response to the Prosecutor’s submissions, the Company referred to its submissions on state of mind (written submissions, paragraph 46).

95. In those submissions, the Company first advanced that the Prosecutor’s submissions were defective as they had not identified which person or persons constituted the “controlling mind” of the Company for the purposes of attributing any particular state of mind to it (written submissions, paragraphs 46 and 38 to 40).

96. It was further submitted for the Company that:

1. It had fully and openly disclosed the plant’s excessive daily production during the Prosecutor’s investigations;

2. Its breach of condition 4 on 31 January 2015 was neither intentional nor negligent since its plant manager was not, as a matter of fact, aware of the condition as of 3 February 2015 when the Prosecutor’s officers attended the plant for a site inspection (even though he should have been);

3. It was not acting intentionally or negligently when it operated the plant in breach of condition 4 because it had been relying upon the advice of a town planner which it had engaged to prepare the development application and accompanying Statement of Environmental Effects; and

4. It had continued to operate the plant in the manner that it did even after it became aware of the relevant conditions because the Prosecutor, despite having received all relevant information regarding the Company’s breaches, had not taken any further action in respect of the matter. In particular, the Company advanced that discussions had taken place between its employees and the Prosecutor’s officers after the site inspection of 3 February 2015, and one of its employees had sent an e‑mail to the Prosecutor’s Director of Environmental Services setting out the town planner’s opinion that the Company’s operations did not conflict with the intent of the Regulations. It was advanced that the Prosecutor never responded to the e‑mail, nor did it pursue the matter further with the town planner or the Company’s employees, or take action against the Company. The Company submitted that, from its point of view, this amounted to an acceptance of its position (Transcript 19 October 2021, page 81, lines 43 to 47 and written submissions, paragraphs 41 and 42).

195. As the High Court put it, in Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54 (Walden v Hensler), “the chief purpose of the criminal law is to deter those who are tempted to breach its provisions” (at 569 per Brennan J).

Specific deterrence

197. The evidence contained in Exhibit 3 does not provide any certainty that the Company, although now folded into the operations of the Colas Group (taking the evidence in Exhibit 3 at its highest in favour of the Company, on the balance of probabilities), will not recommence trading at some future time. If it does so, it is appropriate that, as an entity, it be warned, through these sentencing proceedings, that it ought not behave, in the future, in the fashion that has given rise to these two charges.

198. That is of importance, I am satisfied, given that the offending conduct in each instance arose as a necessary consequence of deliberate actions by the Company, rather than through mere inadvertence or accident. Under these circumstances, I am satisfied that a degree of specific deterrence is necessary to be factored into my instinctive synthesis of the appropriate starting penalty for each of the charges to which the Company has pleaded guilty.

199. However, taking the evidence in Exhibit 3 at its highest in favour of the Company, specific deterrence (although necessary) is of significantly lesser importance than would have been the position had the Company remained an actively trading entity in the road construction and/or repair business.

General deterrence

200. It is also necessary to consider the extent to which sentencing the Company for its offending conduct conveys a measure of general deterrence to those who might contemplate carrying out similar unlawful activities.

201. As Brennan J also said in Walden v Hensler, at 570:

But when a law proscribes conduct which an ordinary person without special knowledge of the law might engage in in the honest belief that he is lawfully entitled to do so, the secondary deterrent purpose - that is, the purpose of educating both the offender and the community in the law's proscriptions so that the law will come to be known and obeyed - must be invoked to justify the imposition of a penalty for breach. In such a case, care must be taken in imposing a penalty lest the offender be made to shoulder an unfair burden of community education.

202. In this context, it is to be observed that matters of general deterrence are not, in circumstances such as these, directed solely at an amorphous and unconfined wide public audience. The need for a more general deterrent educational outcome must be met by sending a message to those other operators who are commercially engaged in road renovation or repair activities similar to those carried out by the Company.

203. Whilst it is, clearly, not appropriate to impose a disproportionate penalty on the Company for its offending conduct, I am satisfied that it is appropriate to have regard to the need for an element of general deterrence in the penalties which I am to impose.

The appropriate starting sentences

Introduction

204. In determining the appropriate starting penalties for the Company, I must undertake the mandated process of instinctive synthesis (Markarian v R (2005) 229 CLR 357; [2005] HCA 25), having regard to all the objective factors of the offending conduct (as earlier discussed) and the subjective factors peculiar to the Company that temper what might otherwise be the penalty to be imposed.

205. Camilleri's Stock Feeds (also at [698]) 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.

206. The sentence to be imposed must reflect all the relevant objective circumstances of the offence and subjective circumstances of the Company (Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 and Veen v The Queen (No 2)). The sentence is not to exceed what is “justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances” (Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354, citing Veen v The Queen (No 2)).

207. The upper limit for the range within which the sentence for each offence 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)). 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 offences’ objective seriousness.

208. This process permits me to arrive at the starting sentences for the offences to which the appropriate discount is to be applied for the entry of the Company’s guilty pleas.

The “production volume” offence

209. I have earlier explained why I am satisfied that the Company’s offending conduct founding the “production volume” charge should be regarded as being of high objective seriousness and at the middle of the range for offending conduct of the nature embodied in this charge.

210. It is now necessary for me to undertake the necessary instinctive synthesis of considering what should be the appropriate starting sentence for this offending conduct having regard to that finding as to objective seriousness, coupled with the aggravating and mitigating factors specific to the Company. Having regard to all of these matters and the fact that the maximum penalty is $1,100,000, I have concluded that the appropriate starting penalty for the “production volume” offence is $600,000.

The “truck movement” offence

The application for a special finding on the “truck movement” offence

211. I have earlier set out, at [36], the terms of ss 10 and 10A of the Sentencing Procedure Act. As there noted, these provisions allow, for appropriate instances on sentencing, to proceed in a more lenient fashion than might be otherwise warranted having regard to the particular circumstances of the offender and the offending conduct.

212. With respect to the “truck movement” offence, Mr Hale proposed that, although the Company had pleaded guilty to this charge, the circumstances of the offending conduct and the fact that the Company had no prior convictions for environmental offences meant that it was appropriate to contemplate giving the Company the benefit of applying one or other of these ameliorative statutory provisions.

The Prosecutor’s submissions

213. The Prosecutor addressed, in written submissions in reply at paragraphs 19 and 20, the proposal that the “truck movement” offence should be dealt with pursuant to s 10 or s 10A of the Sentencing Procedure Act. These paragraphs are set out below:

19.   The application for a s10 or 10A order at DS [52]-[54] for the 18 March 2015 offence for breach of condition 6 must be rejected in accordance with principle. First, the circumstance that the Defendant is an experienced operator in the asphalt production industry, operating similar mobile plants, counts against the exercise of either discretion in its favour. Second, the offence is not trivial, being a significant and measurable breach of a clear standard and contributing as it did to an associated breach of condition 4, with the two additional truck movements adding around 60 tonnes to the 437.87 t produced on that day. Importantly, the Defendant’s submission is that the offence has a “low level of criminality”, which is not the equivalent of triviality. Many non-trivial offences may have a low level of criminality. Third, there is no extenuating circumstance identified. An earlier admission of breaching condition 4 (the 150 t per day limit) and the making of a submission that that breach did not conflict with the intent of the Regulation, does not amount to extenuating circumstances in relation to the condition 6 offence, or at all. Fourth, this was not an early plea. Fifth, the fact that there were simple and obvious steps able to be taken by the Defendant to prevent the contravention, such as stationing someone at the gate to count the number of truck visits with instructions to stop them at 12, or similar, counts against the exercise of the s10 discretion: Secretary, Department of Planning and Environment v Leda Manorsted [2021] NSWLEC 26 at [640]. Sixth, the absence of any evidence of remorse or contrition, counts against the exercise of the s10 discretion: Leda Manorsted at [643].

20.   For the same reasons, and as the s10A discretion is one reserved for rare and unusual cases, the application under s10A in relation to the condition 6 charge would be rejected: Leda Manorsted at [634].

The submissions on behalf of the Company

214. Given my conclusion on this submission, it is appropriate that I set out, in full, the submissions made by Mr Hale in writing and orally on this aspect of the sentencing process engaged for the Company.

215. Mr Hale's written submissions on sentence said the following on this point, at paragraphs 52 to 54:

52.   Section 10(1)(a) of the Sentencing Act provides that, without proceeding to conviction, a court that finds a person guilty of an offence may make an order directing that the relevant charge be dismissed.

53.   Section 10A(1) of the Sentencing Act provides that a court that convicts an offender may dispose of the proceedings without imposing any other penalty.

54.   The defendant submits that, given the matters detailed above, it would be appropriate for the Court to make an order under s 10(1)(a) or alternatively s 10A(1) of the Sentencing Act in respect of the charge for breaching condition 6 of the Consent on 18 March 2015, on the basis that:

(a)   the offence was of a low level of criminality and had a low foreseeable risk of causing environmental harm (and did not in fact cause any environmental harm);

(b)   the offence was committed after Council’s investigations in February 2015, in which the defendant had fully and openly disclosed to Council the nature of its operations of the plant including the advice from its town planner, after which Council did not further investigate the matter or take any action against the defendant;

(c)   the defendant pleaded guilty to the offence at the earliest opportunity; and

(d)   the defendant does not have any previous convictions for environmental offences.

216. The footnote to the chapeau to paragraph 54 above‑referenced Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26 (Leda Manorstead) at [622]-[634]. No detailed commentary was advanced concerning the relevance of Leda Manorstead. However, I address this case in my consideration of these submissions.

217. During the course of his oral submissions, Mr Hale advanced the following in support of the proposal that I invoke these special sentencing provisions for the “truck movement” offence. He submitted (Transcript 19 October 2021, page 94, lines 12 to 19):

We make the s 10 submission in relation to the second offence which is the trucks, the additional two trucks for the reasons that your Honour identified and your Honour will see that submission, as I say, at para 52 to 54. It’s in a different set of circumstances compared with the breach on 31 January. It is different because there was an openness about the number of trucks and nothing was done about it, not an even a suggestion, but they were in breach. Yes, of course we were in breach and we should have known but in the circumstances that is not on that.

Consideration

218. Mr Hale's submissions’ support of this proposed minimal outcome on the vehicle movement charge are rejected. I will explain why.

219. Generally, I adopt the six reasons advanced by the Prosecutor in the written submissions at paragraph 19 as to why the s 10 proposition is to be rejected. I also adopt the reason advanced by the Prosecutor in the written submissions at paragraph 20 as to why the s 10A proposition is also to be rejected.

220. Mr Hale had cited, in a footnote, Leda Manorstead. The relevant paragraphs are reproduced below.

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

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

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

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

221. I have earlier set out, in listing the various sections of the Sentencing Procedure Act that required to be considered, the terms of s 10 (the provision which could permit me to deal with the Company or the “truck movement” offence without recording a conviction) and s 21A(2) which sets out the various factors of aggravation (factors which, if established, contribute to the seriousness with which a defendant's offending conduct is to be regarded).

222. I am satisfied there is an inherent contradiction between these two provisions that arises where, as is here the position, the Prosecutor has established, beyond reasonable doubt (as required by R v Olbrich), three factors of aggravation advanced as engaged pursuant to s 21A(2) of the Sentencing Procedure Act. As a proposition of principle, I do not see how s 10 could be used under such circumstances.

223. However, as well as this matter of principle, there are specific factual reasons why the provision is not appropriate to be applied to the “truck movement” offence.

224. An examination of the various delivery dockets demonstrates that the breach of condition 6 on 18 March 2015 was not an isolated one. Indeed, the Company had entered into a contract where meeting the Company's contractual obligations was not possible without breaching condition 4 and condition 6 on a continuous basis (without having to have regard to the remainder of “MFI B”, a document which I do not admit except to the extent of Exhibit F).

225. However, there is no way that the vehicle movement charge to which the Company has pleaded guilty can be regarded as a de minimus instance of offending conduct. Indeed, the evidence of “Allan”, the Company's manager of the plant during its supplying of the material to the RMS in satisfaction of this contract (as set out in the affidavit of Mr Mark Adams at paragraph 14), was that the capacity of each of the trucks conveying material from the plant to one of the operating sites was of the order of 30 tonnes. Hence, the necessity to fulfil the overall contractual volumetric obligation within the time period of the contract meant the inevitability of breaches of condition 6 (of which I have evidence of the day charged (18 March 2015)) and on many other occasions provides a self-evident reason why the “truck movement” offence is, in itself, of some seriousness.

226. However, I do accept that the truck movement breach does not itself constitute as serious an attack on the integrity of the planning system as that of the deliberate avoidance of the necessity to comply with the requirements of the Regulation for designated development. That necessarily arose from the Company accepting a condition of consent from the Prosecutor that the maximum daily production of the plant would be 150 tonnes in circumstances where the volume required to fulfil the contract, together with the limited time period of the contract, rendered compliance an impossibility.

227. Whilst a similar position applied with impossibility of compliance with the vehicle movement condition, it was a consequence of the overall element of the serious offending conduct of the Company rather than the primary cause of that significant offending conduct (the conduct functionally mandated by the volume of material to be supplied and the limited number of days over which it was to be supplied).

228. I have earlier explained why I am satisfied that the Company’s offending conduct founding the “truck movement” charge should be regarded as being toward the middle of the low range of objective seriousness.

229. It is now necessary for me to undertake the necessary instinctive synthesis of considering what should be the appropriate starting sentence for this offending conduct, having regard to that finding as to objective seriousness, coupled with the aggravating and mitigating factors specific to the Company.

230. Having regard to all of these matters and the fact that the maximum penalty is $1,100,000, I have concluded that the appropriate starting penalty for the “truck movement” offence is $120,000.

The utilitarian value of the Company's guilty pleas

Introduction

231. I am required to have regard to the extent to which the Company's entry of its pleas of guilty to the two charges which it faces have had utilitarian value to the system of justice. For this purpose, it is necessary to assess the extent to which each of the sentences which the Company faces are to be discounted, appropriately, to reflect this. The conventional maximum discount for the entry of guilty pleas at the earliest practical occasion is 25% (R v Thomson).

232. Unsurprisingly, the positions advanced by the parties concerning the extent of the appropriate discount to be allowed to the Company were in stark contrast.

The Prosecutor’s submissions on the guilty plea discount

233. The Prosecutor accepts that the Company, by the entering its guilty pleas, has thus avoided the necessity for a contested criminal trial and that, as a consequence, these pleas have had utilitarian value entitling the Company to some discounts on the otherwise appropriate starting sentences.

234. The Prosecutor submitted (reply submissions):

3.   There should be a significantly reduced discount for an early plea in the present case. The plea was entered on 7 May 2021. The plea could have been entered after leave to amend was granted on 27 November 2019. That was the earliest opportunity: Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] NSWLEC 182. Even in a case where the delay in entering a plea of guilty can be said to not be the fault of the Defendant, the full 25% discount is not allowed, as it has a utilitarian basis: Sydney City Council v Trico [2015] NSWLEC 56 at [87]-[90] (Preston J). In the Prosecutor’s submission, a discount of 10% would be appropriate here; there is more delay than in Trico where 15% was allowed.

The Company’s submissions on the guilty plea discount

235. On the other hand, the Company’s position can be understood from the following exchange (Transcript 19 October 2021, page 81, line 30 to page 82, line 6):

HIS HONOUR: What is the date of the formal amendment of the summonses to reflect that which is currently before me?

HALE: 18 May 2020.

HIS HONOUR: You say to me do you not that that’s the relevant triggering date for my consideration in a Thomson and Houlten sense.?

HALE: What is also we say that as a general proposition a party is not required to plead before this service of the brief of evidence and this as it was earlier this year pleaded is the very first occasion before the Court when there was the opportunity to plead.

HIS HONOUR: To what extent if any do you concede that the finalisation of the ’s brief of evidence might have been delayed potentially by your subpoena proceedings?

HALE: I must concede that.

HIS HONOUR: So that is one of the factors that weighs in my consideration of this is that not the case? I assume you accept do you that something less than 25 might be appropriate you simply say that the discount should not be to the extent of 10 as proposed by the in his reply submissions or 15 as dealt with in Trico?

HALE: Yes we say and I think I put it to you should be close to 25% is the way I put it to your Honour.

Consideration

236. I am satisfied that the position advanced on behalf of the Prosecutor is to be preferred (even if it is potentially a little generous to the Company). This is because the final version of the charges which the Company answered during these proceedings were as a result of the amendment of the Summonses in each instance (formal amendment which took place earlier pursuant to leave to amend following my procedural decisions and the earlier appeals from them.

237. The guilty pleas were entered on 7 May 2021.

238. Although it is correct, as Mr Hale submitted, that the Prosecutor's final brief of evidence was not served on the Company until some time later, the Company's futile resistance to the subpoena which had been issued to the RMS (resistance rejected by me at first instance - see Tropic No 3 - and rejected on appeal - see Tropic Appeal No 3) did not permit finalisation of the Prosecutor’s evidence prior to that entirely unmeritorious challenge being resolved.

239. As a consequence, it would be entirely inappropriate to grant a significantly generous discount to the Company for its guilty pleas and the 10% discount advanced on behalf of the Prosecutor is appropriate.

240. This results in appropriate starting penalties of $540,000 for the “production volume” offence and $98,000 for the “truck movement” offence.

Totality and accumulation

241. I have now set out the starting sentences and the guilty plea discounts to be applied for the offending conduct of the Company.

242. However, in order to determine what should be the final penalty imposed for each offence, it is necessary that I consider what further moderation should be applied to those penalties to reflect the fact that the two offences arose out of the same general course of offending conduct. This requires consideration of how the penalties should be accumulated to reflect the totality of the offending conduct (in lieu of treating, separately, the punishments for each of the offences).

243. In this context, it is necessary to consider whether each of the offences to which the Company has pleaded guilty should be regarded as being part of a course of conduct for offending or whether each of them should be regarded as a separate and standalone offence requiring assessment independent of the other.

244. During the course of the hearing, I asked the Prosecutor and Mr Hale about this issue, as it would arise in the context of whether an allowance would need to be made for accumulation of penalties where the offences were related. Unusually in these proceedings, the Prosecutor adopted the position that totality and accumulation should be dealt with as a single consideration, whilst Mr Hale submitted that the offences were separate and distinct (indeed, submitting that the “truck movement” offence was to be characterised and punished in a quite significantly differentiated fashion to that relating to the “production volume” offence, a matter with which I have dealt with earlier). I reject the proposition advanced by Mr Hale that the two offences should be characterised and sentenced separately.

245. I am satisfied that I should take the starting penalties, earlier set out as appropriate (after application of the appropriate guilty plea discount), together and further moderate the total effective penalty to be imposed on the Company to have regard to the fact that the two sets of offending conduct are to be regarded as component parts of a common course of offending conduct is correct.

246. The appropriate fashion by which to do this, I have concluded, is to effect a reduction in the penalty otherwise appropriate to be imposed on the Company for the “truck movement” offence. I have reached this conclusion because I am satisfied that it is desirable to leave the penalty to be imposed on the Company for its “production volume” offence undisturbed in order not to dilute the general deterrent value of that penalty.

247. As a consequence, I am satisfied that the penalty to be imposed on the Company for the “truck movement” offence should be moderated to be $60,000 to derive an appropriate accumulated overall penalty of $600,000, as reflecting the totality of the Company’s offending conduct.

Costs

248. As earlier noted, ss 257B and 257G of the Criminal Procedure Act operate to permit me to order that the Company is to pay the Prosecutor's costs of these proceedings. The second of the above-noted provisions requires (s 257G(b)) that, absent an agreement between the parties as to a specified amount to be nominated in a costs order, costs are to be ordered as agreed or assessed. Although I enquired of the parties as to whether there was any agreement as to costs, the responses made it clear that there was not.

249. Whilst Environment Protection Authority v Barnes (2006) NSWCCA 246 is often said to provide a basis for taking the liability of a defendant to pay a prosecutor’s costs into account when setting a penalty, a reading of that decision makes it clear that there the question arose in the context of capacity to pay. That clearly does not arise here in the complete absence of any financial capacity evidence on behalf of the Company. There is, therefore, no relevant “downward pressure” to be applied to the appropriate penalties.

250. It is, therefore, appropriate simply to order that the Company pay the Prosecutor’s costs as agreed or assessed.

Orders

251. It follows from what I have set out above, that the orders of the Court in Matter No 381474 of 2016 are:

1. Tropic Asphalts Pty Ltd (the Defendant) is convicted of an offence against s 125 of the Environmental Planning and Assessment Act 1979 in that, contrary to s 76A(1)(b) of that Act, it carried out development at Rock Flat in the State of New South Wales on 31 January 2015 in breach of condition 4 of development consent DA 10.2014.391.1 granted by Cooma Monaro Shire Council on 13 January 2015;

2. The Defendant is fined $540,000; 

3. Pursuant to s 257G(b) of the Criminal Procedure Act 1986, the Defendant is to pay the Prosecutor's costs as agreed or assessed; and

4. The exhibits are returned.

252. It also follows from what I have set out above, that the orders of the Court in Matter No 381475 of 2016 are:

1. Tropic Asphalts Pty Ltd (the Defendant) is convicted of an offence against s 125 of the Environmental Planning and Assessment Act 1979 in that, contrary to s 76A(1)(b) of that Act, it carried out development at Rock Flat in the State of New South Wales on 18 March 2015 in breach of condition 6 of DA 10.2014.391.1 granted by Cooma Monaro Shire Council on 13 January 2015.

2. The Defendant is fined $60,000; 

3. Pursuant to s 257G(b) of the Criminal Procedure Act 1986, the Defendant is to pay the Prosecutor's costs as agreed or assessed; and

4. The exhibits are returned.

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Decision last updated: 01 April 2022