Transport for NSW v East Coast Wharf Constructions Pty Ltd; Transport for NSW v King

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Transport for NSW v East Coast Wharf Constructions Pty Ltd; Transport for NSW v King [2020] NSWLEC 112
Hearing dates: 1 and 23 September 2020
Date of orders: 16 October 2020
Decision date: 16 October 2020
Jurisdiction: Class 5
Before: Moore J
Decision:
See orders at [296] to [300]

Catchwords:
PROSECUTION - prosecutions commenced by three Summonses against each of a corporate and an individual defendant - individual Defendant prosecuted under special executive liability provision of the Protection of the Environment Operations Act 1997 for the offending conduct of the corporate Defendant - “not guilty” pleas entered by each Defendant to each charge - Prosecutor agrees not to pursue Summons alleging Tier 1 offence by each Defendant - each Defendant then pleads guilty to the two remaining Tier 2 charges laid against that Defendant - sentencing hearing held
PENALTIES - corporate Defendant to be convicted -guilty plea entered to two remaining charges - need to provide for both specific and general deterrence - indicative starting sentences of $40,000 and $90,000 - plea of guilty not entered at earliest opportunity but of more than minor utilitarian value - discount of 10% on starting penalties - impact of imposition of order for payment of Prosecutor’s costs - consideration of totality and accumulation of penalties - total fine of $105,000 imposed
PENALTIES - individual Defendant to be convicted -guilty plea entered to two remaining charges - need to provide for both specific and general deterrence - indicative starting sentence of $12,000 and $27,000 - discount of 10% for the guilty pleas - impact of imposition of order for payment of Prosecutor’s costs - consideration of totality and accumulation of penalties - total fines of $28,000 imposed
PUBLICATION ORDER - Prosecutor seeks publication order - Prosecutor proposes publication in Afloat Magazine, Daily Telegraph and the Manly Daily publications - Defendants resist the making of any publication order - appropriate to make a publication order - notice to be published ordered in Plain English terms, terms differing from those sought by the Prosecutor - appropriate to order publication of notice in Afloat Magazine, and the Manly Daily but not in the Daily Telegraph - method of specification of effecting publication in newspaper now only published online - publication order expressly created by the Protection of the Environment Operations Act 1997 as being in addition to, and not in substitution for, any element of the appropriate penalty to be imposed on each Defendant - not appropriate to reduce the penalty imposed on each Defendant as a consequence of making a publication order

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999, ss 3, 21A, 22 and 23
Criminal Procedure Act 1986, ss 257B and 257G
Fines Act 1996, s 6
Protection of the Environment Operations Act 1997, ss 115(1), 143(1), 144(1), 250(1)(a) and Dictionary
Protection of the Environment Operations (Waste) Regulation 2014

Cases Cited:
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Caralis v Smyth (1988) 65 LGRA 303
Environment Protection Authority v Albiston [2020] NSWLEC 80
Environment Protection Authority v Alcobell Pty Ltd; EPA v Campbell [2015] NSWLEC 123
Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80; 235 LGERA 114
Environment Protection Authority v Edward Glider [2018] NSWLEC 119
Environment Protection Authority v Foxman Environmental Development Services; Environment Protection Authority v Botany Building Recyclers Pty Ltd; Environment Protection Authority v Foxman (No 2) [2016] NSWLEC 120
Environment Protection Authority v Hughes [2019] NSWLEC 108
Environment Protection Authority v Laison [2015] NSWLEC 89
Environment Protection Authority v Rands [2019] NSWLEC 23
Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
EPA v Barnes [2006] NSWCCA 246
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66
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
Shoalhaven City Council v Knight [2019] NSWLEC 138
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7
Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14
Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54
Wollongong City Council v Eldridge [2017] NSWLEC 35

Texts Cited:
COVID-19 Pandemic Arrangements Policy

Category: Sentence
Parties: Transport for NSW (Prosecutor)
East Coast Wharf Constructions Pty Ltd (Defendant in Matters 344508 and 344550 of 2018)
Benjamin Peter King (Defendant in Matters 344556 and 344557 of 2018)
Representation:
Counsel:
Mr E Muston SC/Ms B Anniwell, barrister (Prosecutor)
Ms K Hawes, solicitor (Defendants)
Solicitors:
Norton Rose Fullbright (Prosecutor)
Aquarius Lawyers (Defendants)

File Number(s): 344508, 344550, 344556 and 344557 of 2018
Publication restriction: No

TABLE OF CONTENTS

Introduction
The terms of the remaining Summonses
The relevant statutory provisions
Introduction
The POEO Act
The Sentencing Procedure Act
The Fines Act

The maximum penalty
The sentencing hearing
The evidence
The Statements of Agreed Facts
Contextual background facts
Mr King's record of interview
The photographic evidence
The Defendants’ pleas of guilty
The issues for determination
Sentencing Procedure Act factors
Introduction
Potential factors of aggravation
Introduction
The extent of prior offending
Environmental harm
Introduction
The three sunken pontoon sections
The evidence - a general outline
Mr Conradi's evidence
Mr MacDiarmid's evidence
The submissions concerning the provenance of the sunken pontoon section
Consideration
Environmental harm caused by the three sunken pontoon sections
Introduction
Dr Petch’s evidence
The Prosecutor’s submissions
The Defendants’ submissions
Control over the causes of the actual and potential environmental harm
Practical measures to mitigate harm
Surface dispersal and appearance issues of the transported material
Conclusion on environmental harm

The Defendants’ subjective factors
Introduction
The Company’s subjective factors
The extent of harm (s 21A(2)(a))
Prior convictions (s 21A(3)(e))
The Company’s character (s 21A(3)(f)).
Contrition and remorse (s 21A(3)(i))
Entry of the Company’s guilty pleas (s 21A(3)(k))
Cooperation with the Prosecutor (s 21A(3)(m))

Mr King’s subjective factors
The extent of harm (s 21A(2)(a))
Prior convictions (s 21A(3)(e))
Mr King’s character (s 21A(3)(f)).
Contrition and remorse (s 21A(3)(i))
Entry of Mr King’s guilty pleas (s 21A(3)(k))
Cooperation with the Prosecutor (s 21A(3)(m))

Deterrence
Introduction
Specific deterrence
General deterrence

Characterisation of the Defendants’ offending conduct
Introduction
Consideration
Introduction
The waste transportation offences
The waste storage charges

Comparable cases for sentencing consideration
The appropriate starting sentences
Introduction
The waste transportation charges
The waste storage charge

The Defendants’ guilty pleas
Introduction
The Prosecutor’s submissions on the guilty plea discount
The Defendants’ position
Consideration

The Defendants’ financial capacity to pay a fine
Totality and accumulation
Costs
Requiring publication notices concerning the offences
Introduction
The Defendants’ resistance to a publication order
Consideration
The terms of the notice proposed by the Prosecutor
The terms of the notice to be published
The appropriate publications in which the notice is to appear
The Manly Daily is now a digital only newspaper
No penalty moderation for the costs of publication

Orders

JUDGMENT

Introduction

On 9 November 2018, Transport for NSW (then known as Roads and Maritime Services) (the Prosecutor) commenced three separate prosecutions against both East Coast Wharf Constructions Pty Ltd (the Company) and its sole director, shareholder and guiding mind, Mr Benjamin Peter King (Mr King). As appropriate, I will refer to the Company and Mr King collectively as the Defendants.
The three charges against each of the Defendants comprised a single Tier 1 charge alleging wilful or negligent disposal of waste in a manner that harmed or was likely to harm the environment in breach of s 115(1) of the Protection of the Environment Operations Act 1997 (the POEO Act), and two Tier 2 charges under the POEO Act against each of the Defendants. The details of the Tier 2 charges are later set out in detail.
On 6 September 2019, Ms Hawes, solicitor for the Defendants, entered “not guilty” pleas on behalf of the Company and Mr King to each charge against each of them.
The matters were set down for a contested liability hearing for a period of 10 days commencing on 1 September 2020.
On the first scheduled day of the liability hearing, I was advised by the Prosecutor that it no longer intended to press the Tier 1 charges against the Defendants. The Prosecutor also advised that, as a consequence, it was to be expected that the Defendants would each enter a “guilty” plea to each of the two charges remaining against that Defendant.
Ms Hawes then entered “guilty” pleas on behalf of each of the Company and Mr King to the two Tier 2 charges remaining against each of them.
One charge of transporting waste to a place that could not lawfully be used as a waste facility for that waste and one charge of using a place as a waste facility without lawful authority comprised those remaining charges against each of the Defendants. The terms of the relevant Summonses against the Company (including the particulars of each offence alleged) are later set out in full. The relevant provisions of the POEO Act creating the offences are also later set out.
The substance of the charges against Mr King are in identical terms to those against the Company as Mr King has also been charged with those offences - with the Prosecutor relying on the special executive liability provisions contained in s 169(1) of the POEO Act for this purpose. This provision of the POEO Act is also later set out.

The terms of the remaining Summonses

As earlier explained, the Company has pleaded guilty to the two offences with which it remains charged. Mr King has also pleaded guilty to the same offences.
It is appropriate to reproduce, in their entirety, the terms of each Summons for the charges remaining against the Company (and the particularisation thereof), together with the ancillary orders sought in each instance.
The first of the offences relates to the transporting of waste from the Berowra Marina (the Marina) to Pittwater. This offence it is one arising pursuant to s 143(1) of the POEO Act (a provision later set out). The terms of this Summons are set out below:

The Prosecutor claims:

1 An order that East Coast Wharf Constructions Pty Limited (ACN 113 385 443), having, as its registered office, Suite 9, 2 Bungan Lane, Mona Vale 2103 in the State of New South Wales, appear before a Judge of the Court to answer the charge that between 5 December 2015 and 24 December 2015, at Pittwater in the State of New South Wales it committed an offence against section 143(1) of the Protection of the Environment Operations Act 1997 in that it transported waste to a place that could not lawfully be used as a waste facility for that waste.
Particulars of the place to which the waste was transported
The site of commercial mooring CL8027, being a commercial mooring place in the waters of Pittwater occupied during the charge period by the Defendant.
Particulars of the waste
Demolition waste comprising unwanted and surplus materials from demolition works carried out by the Defendant at the Berowra Waters Marina involving the demolition of pontoons, pontoon walkways, pontoon fingers and pontoon gangways at the marina, such waste including, without limitation, plastic flotation chambers, metal frames, wooden planks, carpet lengths, metal fixtures, and wiring derived from the demolition.
Manner of breach
The Defendant transported the waste by water by means of a vessel operated by the Defendant from the site of the Berowra Waters Marina to the site of commercial mooring CL8027 in Pittwater, being a place that could not be lawfully used as a waste facility for the waste.
Particulars of the date on which evidence of the offence first came to the attention of any authorised officer
Evidence of the commission of the offence first came to the attention of any authorised officer in December 2015 when it first came to the attention of Mr Stephen Nugent, who was at that time an authorised officer appointed under the Protection of the Environment Operations Act 1997 employed by the Prosecutor.

2 An order that the Defendant be dealt with according to law for the commission of the above offence.
3 An order that the Defendant pay the Prosecutor's costs.
4 Such orders pursuant to Part 8.3 of the Protection of the Environment Operations Act 1997 as the Court in its discretion sees fit to make.

The second of the offences arises from the storage of the waste from the Marina at the Company's commercial mooring in Pittwater (the Mooring) - a mooring to the west of Scotland Island. This offence arises from the terms of s 144(1) of the POEO Act, a provision also later set out. The terms of this Summons are reproduced below:

The Prosecutor claims:

1 An order that East Coast Wharf Constructions Pty Limited (ACN 113 385 443), having, as its registered office, Suite 9, 2 Bungan Lane, Mona Vale 2103 in the State of New South Wales, appear before a Judge of the Court to answer the charge that between 24 December 2015 and 23 March 2016 at Pittwater in the State of New South Wales, it committed an offence against section 144(1) of the Protection of the Environment Operations Act 1997 in that, being the occupier of a place, it used that place as a waste facility without lawful authority.
Particulars of the place used as a waste facility
The site of commercial mooring CL8027, being a commercial mooring place in the waters of Pittwater occupied during the charge period by the Defendant.
Particulars of the waste
Demolition waste comprising unwanted and surplus materials from demolition works carried out by the Defendant at the Berowra Waters Marina involving the demolition of pontoons, pontoon walkways, pontoon fingers and pontoon gangways at the marina, such waste including, without limitation, plastic flotation chambers, metal frames, wooden planks, carpet lengths, metal fixtures, and wiring derived from the demolition.
Manner of breach
The Defendant used the site of commercial mooring CL8027 as a waste facility without lawful authority by, without limitation, placing, floating, piling, securing and processing the waste at the site of commercial mooring CL8027.
Particulars of the date on which evidence of the offence first came to the attention of any authorised officer
Evidence of the commission of the offence first came to the attention of any authorised officer in December 2015 when it first came to the attention of Mr Stephen Nugent, who was at that time an authorised officer appointed under the Protection of the Environment Operations Act 1997 employed by the Prosecutor.

2 An order that the Defendant be dealt with according to law for the commission of the above offence.
3 An order that the Defendant pay the Prosecutor's costs.
4 Such orders pursuant to Part 8.3 of the Protection of the Environment Operations Act 1997 as the Court in its discretion sees fit to make.

It is unnecessary to reproduce the two Summonses that provide the basis for the remaining charges laid personally against Mr King. It is sufficient to note that they are, in all relevant aspects, in identical terms to those providing the foundation for each of the charges against the Company. The only difference is the necessary insertion, in each statement of charge, that Mr King's liability arises as a result of s 169(1) of the POEO Act as creating his special executive liability for the offending conduct carried out by the Company.

The relevant statutory provisions

Introduction

A number of provisions of the POEO Act and the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) are relevant, as is one provision in the Fines Act 1996 (the Fines Act). These provisions are set out below.
The costs-ordering provisions contained in ss 257B and 257G of the Criminal Procedure Act 1986 (the Criminal Procedure Act) are engaged in order to permit me to order that the Defendants are jointly liable 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 appropriate costs orders.

The POEO Act

The relevant provisions of the POEO Act requiring consideration in these proceedings are:

First, ss 143(1) and 144(1) are the two provisions that create the offences with which each of the Defendants has been charged. These provisions are in the following terms:

143   Unlawful transporting or depositing of waste
(1)   Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported—
(a)   the person, and
(b)   if the person is not the owner of the waste, the owner, are each guilty of an offence.

Maximum penalty—
(a) in the case of a corporation—$2,000,000 (if the offence involves asbestos waste) or $1,000,000, or
(b) in the case of an individual—$500,000 (if the offence involves asbestos waste) or $250,000.

144   Use of place as waste facility without lawful authority
A person who is the owner or occupier of any place and who uses the place, or causes or permits the place to be used, as a waste facility without lawful authority is guilty of an offence.
Maximum penalty—
(a)   in the case of a corporation—$2,000,000 (if the offence involves asbestos waste) or $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b)   in the case of an individual—$500,000 (if the offence involves asbestos waste) or $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

Second, as Mr King's exposure to prosecution arises as a consequence of the special executive liability provisions of the POEO Act contained in s 169(1), it is appropriate to set out that provision. It is in the following terms:

169   Liability of directors etc for offences by corporation—offences attracting special executive liability
(1)   If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that—
(a)    (Repealed)
(b)   the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(c)   the person, if in such a position, used all due diligence to prevent the contravention by the corporation.

It is to be noted that Mr King does not rely upon either of the statutory defences provided for in the immediately above element of the provision. It is also to be noted that both s 143(1) and s 144(1) are listed in s 169(1A) (a provision containing a lengthy list not necessary to reproduce) as provisions to which s 169(1) applies. The remaining elements of s 169 are:
(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.
(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.

Third, in the context of the offences charged as breaches of s 144(1), it is appropriate to reproduce two definitions from the Dictionary to the POEO Act. These definitions are those of harm and of waste facility. The definitions are in the following terms:

harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.
waste facility means any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations).
It is to be noted that there is no exclusion here relevant contained in, or arising out of the operation of, the Protection of the Environment Operations (Waste) Regulation 2014 as provided for in the definition of waste facility.

The POEO Act sets out, in s 241, a range of matters which, if applicable, require to be considered in the process of determining what penalty is to be imposed for offences committed against this legislation. This provision is in the following terms:

241   Matters to be considered in imposing penalty
(1)   In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant)—
(a)   the extent of the harm caused or likely to be caused to the environment by the commission of the offence,
(b)   the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(c)   the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,
(d)   the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(e)   whether, in committing the offence, the person was complying with orders from an employer or supervising employee,
(f)   the presence of asbestos in the environment.

(2) The court may take into consideration other matters that it considers relevant.

It is to be observed that the elements of s 241 of the POEO Act that are mandated to be considered (here, relevantly, s 241(1)(a) to (d)) are also matters which arise for consideration in the context of s 21A(2) or (3) of the Sentencing Procedure Act. As a matter of convenience, common matters of evidence and their consideration are dealt with in my setting out of the evidence, submissions and my conclusions concerning the relevant provisions of the Sentencing Procedure Act (noting where appropriate, however, that this analysis encompasses these provisions of the POEO Act).

The final element of the POEO Act engaged for consideration is s 250(1)(a), the provision that permits additional orders to be made to publicise the offending conduct of, and the punishment given to, those convicted of breaches of this legislation. This provision is in the following terms:

250   Additional orders
(1)   Orders The court may do any one or more of the following—
(a)   order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,

The Sentencing Procedure Act

A number of provisions of the Sentencing Procedure Act also require consideration for the determination of the appropriate penalties to be imposed on each of the Defendants. The first of those provisions is s 3, the provision which sets out the objectives for criminal sentencing. This 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.

The second provision is s 21A Aggravating, Mitigating and Other Factors in Sentencing. This provision sets out those matters potentially arising concerning the offending conduct and those factors concerning the subjective circumstances of each Defendant.

First, s 21A(2) sets out the potential factors of aggravation requiring to be assessed with regard to the offending conduct. In this instance, two potential factors of aggravation require later consideration.

Second, s 21A(3) calls up for consideration a range of subjective factors potentially applicable to each of the Defendants. The relevant elements of s 21A(2) and (3) are noted when I later address those matters in detail.

As a consequence of two of the elements of s 21A(3) being engaged by the guilty pleas entered by each Defendant and by Mr King taking part in a directed interview with the Prosecutor, it is also appropriate to set out the more expansive provisions of the Sentencing Procedure Act relating to each of these matters. They are contained in ss 22 and 23 of the legislation. These provisions are in the following terms:

Guilty plea to be taken into account
(1)   In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:
(a)   the fact that the offender has pleaded guilty, and
(b)   when the offender pleaded guilty or indicated an intention to plead guilty, and
(c)   the circumstances in which the offender indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.
(1A)   A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
(2)   When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.
(3)   Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(4)   The failure of a court to comply with this section does not invalidate any sentence imposed by the court.
1. Given my later explained conclusion concerning the extent of Mr King’s cooperation with the Prosecutor, it is only necessary to reproduce s 23(1) of the Sentencing Procedure Act at this point.
Power to reduce penalties for assistance provided to law enforcement authorities
(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

The Fines Act

As Ms Hawes made a submission on behalf the Company concerning its capacity to pay such penalties as might be appropriate to be imposed on it, the terms of s 6 of the Fines Act also require consideration. This provision is in the following terms:

Consideration of accused’s means to pay
In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:
(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and
(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

The maximum penalty

The maximum penalty applicable to each offence for which the Company is to be convicted is $1,000,000. The maximum penalty applicable to each offence for which Mr King is to be convicted is $250,000. These maximum penalties reflect a public expression by the Parliament of the seriousness of the offence charged (Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (Camilleri’s Stock Feeds at 698).

The sentencing hearing

The sentencing hearing took place on 23 September 2020. It was held, as a consequence of the COVID-19 pandemic, using Microsoft Teams software without the necessity for any physical attendance in the courtroom. This hearing was conducted in accordance with the Court’s COVID-19 Pandemic Arrangements Policy. The sentencing hearing was conducted efficiently by the parties - taking less than half a day.
The Prosecutor was represented by Mr E Muston SC and Ms B Anniwell, barrister. As earlier noted, the Company and Mr King were represented by Ms Hawes.
Both the Prosecutor and Ms Hawes provided written submissions on sentence and, at appropriate points throughout this decision, I will refer to those submissions and/or quote from them.

The evidence

The Prosecutor provided an electronic Court Book. This document had been prepared on the basis that the Defendants had pleaded not guilty to all three of the original charges.
As a consequence of the agreement of the Prosecutor not to press the Tier 1 charge pursuant to s 115(1) of the POEO Act against each Defendant, coupled with the “guilty” plea from both Defendants to the two remaining charges against each of them, much of the electronic Court Book was rendered irrelevant. As a consequence, I pay no heed to those elements that do not relate to the four charges to which “guilty” pleas have been entered.
The Prosecutor adduced affidavit evidence from the witnesses listed below. Several of the Prosecutor’s witnesses were required for cross-examination. I will refer to those witnesses’ written and/or oral evidence as appropriate. The Prosecutor’s evidence comprised:

An affidavit of Mr Michael Conradi, former manager of the Marina, dated 11 September 2018. Tab B from Exhibit MC-1 to this affidavit became Exhibit C. Mr Conradi was required for cross-examination.

An affidavit of Mr Scott Kenny, a hydrographic surveyor employed by the Prosecutor. Mr Kenny’s evidence provided an image of three sunken pontoon sections recovered from the site, the location of which was identified by the evidence of Ms Kildea (noted immediately below). Mr Kenny was not required for cross-examination.

An affidavit of Ms Andrea Kildea, a geospatial analyst. Annexure A (her Expert Report) became Exhibit D. Ms Kildea’s expert evidence established that the dive site from which the three sunken pontoon sections were retrieved was located 282.88 metres to the north‑north‑east of the Mooring. Her Expert Report also identified the coordinates of the site from which the three sunken pontoon sections were retrieved. Ms Kildea was not required for cross-examination.

An affidavit of Mr Scott MacDiarmid, a former employee of the Marina, dated 14 September 2018. Tab A from Exhibit SM1 to this affidavit became Exhibit E. Mr MacDiarmid was required for cross-examination.

An affidavit of Mr Stephen Nugent, a retired boating safety officer who had been employed by the Prosecutor. Images annexed to Mr Nugent’s affidavit became Exhibit F. Mr Nugent was required for cross‑examination.

An affidavit of Dr David Petch dated 2 July 2019 annexing his Expert Report of 25 January 2019. Dr Petch is a marine ecologist. He has a BSc(Hons) and a PhD in Marine Ecology from the University of Melbourne. He is employed by GHD. Dr Petch was not required for cross-examination.

The Statements of Agreed Facts

In anticipation of a contested hearing on liability, the Prosecutor and Ms Hawes had settled a Statement of Agreed Facts and a bundle of documents relevant for such a hearing. These became Exhibit B.
The Prosecutor and Ms Hawes subsequently settled a Statement of Agreed Facts on Sentencing and a bundle of documents relevant for this purpose. These became Exhibit A.
In addition, as earlier noted, the Prosecutor relied on the affidavit evidence of several witnesses who were required by Ms Hawes for cross‑examination. Their written and oral evidence is later addressed.
The Prosecutor's written submissions had had attached to it, as Annexure A, a document based on an amalgam of material from the Statement of Agreed Facts on Sentence, a bundle of documents attached to it and material extracted from the Statement of Agreed Facts which had been prepared on the basis that a contested hearing on liability was to take place. The three types of elements included in this document are described below.
The Prosecutor’s Annexure A recorded:

facts agreed between the parties on sentence (set out in black text);

facts agreed between the parties on liability (set out in green text); and

facts which were not agreed between the parties but which the Prosecutor proposed that I should find established on the basis of the Prosecutor's affidavit and documentary evidence.

This summary, including the different colouring of the elements in it, provides a useful basis for understanding the nature of that which was agreed and that which was in factual contest during the course the sentencing hearing. Annexure A to the Prosecutor’s written submissions on sentence is, therefore, reproduced in full below (with the footnotes omitted), showing the different text colouring noted above:

FACTS AGREED BETWEEN THE PARTIES ON SENTENENCE,

FACTS AGREED BETWEEN THE PARTIES ON LIABILITY, AND

FACTS TO BE FOUND ON THE EVIDENCE

The Prosecutor

On 1 December 2019 the Roads and Maritime Services (RMS) was dissolved and its assets, rights and liabilities were transferred to Transport for NSW (TfNSW), pursuant to the Transport Administration Amendment (RMS Dissolution) Act 2019 (NSW).
Any reference in this Statement of Agreed Facts to RMS should be taken to mean TfNSW.

The Defendant

East Coast Wharf Constructions Pty Ltd (ACN 113 385 443) (ECWC) is an Australian Proprietary Company which is limited by shares. ECWC was registered on 15 March 2005.
ECWC's registered address is WD O’Brien & Associates, Suite 9, 2 Bungan Lane, Mona Vale NSW 2103. Its Principal Place of Business address is 94 Thompson Street, Scotland Island NSW 2105.
Mr Benjamin Peter King was born on 15 July 1975. His address is 94 Thompson Street, Scotland Island NSW 2105. During the offence periods Mr King was, and is currently, the sole shareholder, director, and secretary of ECWC.
ECWC and Mr King are jointly referred to in this statement of facts as the Defendants.
ECWC and Mr King entered in a plea of ‘not guilty’ on 6 September 2019 to all charges.
On 1 September 2020, ECWC and Mr King entered a plea of guilty to the charges in summonses 2018/344508, 2018/344550, 2018/344556 and 2018/344557.

ECWC’s commercial mooring licence

ECWC holds, and during the offence period held, commercial mooring licence CL8027 (Mooring).
The Mooring is located in the waters of Pittwater, to the west of Scotland Island.
The coordinates of the Mooring are 33° 38’ 14.400”S 151° 17’ 8.800”E. The location of the Mooring is depicted in the map at page 1 of the Bundle of Agreed Documents (the Bundle), which was produced by the Manager of Spatial Information at RMS (the Map).
A letter from RMS dated 6 January 2011 notified ECWC of the grant of the Mooring licence. A copy of that letter commences on page 2 of the Bundle. The letter states that the Mooring licence is a Class F licence and that:
“The licence has been issued to your business for the use of marine construction/salvage. The mooring site may only be used for this approved purpose and may not be varied."
The Mooring licence was issued to ECWC under the Management of Water and Waterside Lands Regulation NSW (MWWL Regulations) and was issued as a Class F licence.
The Mooring was subject to standard conditions, including the following:
(i) “Only one vessel is to be attached to each mooring (unless written approval is given by Roads and Maritime).”
(ii) “The vessel only occupies the mooring in pursuance of the approved purpose of the Licence and for no other purpose.”

Mr King’s private mooring licence and vessel

Mr King holds private mooring licence IL076.05.
IL076.05 is located in the waters of Pittwater, to the west of Scotland Island.
The coordinates of IL076.05 are 33° 38’ 17.200”S 151° 17’ 6.400”E. The location of the private mooring is depicted in the Map at page 1 of the Bundle.
A 15 meter timber fishing vessel called the “Caroline H”, registration number ACT763N, is registered to Mr King.
A Dumb Barge with registration number 55761 is registered to Mr King (Dumb Barge).

Berowra Waters Marina

Berowra Waters Marina (Marina) is located at 199 Bay Road, Berowra Waters NSW.
The distance of a potential route, by water, between the Marina and the Mooring is approximately 42km. The distance and potential route between the Marina (marked with a green dot) and the Mooring (marked with a black dot) is depicted by the blue line in the map at page 8 of the Bundle [of Agreed Documents on Liability], which was produced by a geospatial analyst.
Cameron Brae Properties Pty Ltd (Cameron Brae) holds a leasehold interest at the Marina and manages it.
The former name of Cameron Brae is Shargaz Pty Ltd. Mr Christopher James Muir is the Manager of Passive Properties with Cameron Brae.

Heads of Agreement for demolition works at the Marina

On or around 10 November 2015, Mr Muir emailed a draft binding Heads of Agreement (HOA) between ECWC and Shargaz Pty Ltd to Mr King. A copy of the HOA commences at page 9 of the Bundle [of Agreed Documents on Liability].
On or around 11 November 2015, Mr King signed the HOA on behalf of ECWC.
Under the HOA, ECWC agreed to perform works defined as the ‘Work Under the Contract’ or ‘WUC’.
Item D of the Background section in the HOA defined the WUC as follows (page 9 of the Bundle [of Agreed Documents on Liability]):
“(i)   the removal of all existing piles from the Marina, except for the two on the fuel pontoon and disposal of the same;
(ii)   supply of new steel piles and installation of those piles complete with sleeves and caps in a manner as will integrate with and provide necessary support to the Main Contract Works;
(iii)   removal and/or relocation of existing pontoons in accordance with the demolition plan attached hereto as annexure ‘G’;
(iv)   demolition and removal of existing walkways, fingers and gangways in accordance with, the demolition plan attached hereto as annexure 'G'. Waste to be managed properly and any excess disposed off-site at contractor’s expense... ”
Annexure G, as referred to in clause (iii) of Item D extracted above, is a plan of the Marina. Annexure G shows certain areas of the Marina’s pontoon infrastructure superimposed with hatching. A handwritten instruction states "Demolish existing marina in hatched area” (page 47 of the Bundle [of Agreed Documents on Liability]).
The ‘Contract Sum’ is $255,000.00 excl. GST.

Environment Management and Site Management Plans obligation in the HOA

Clause 5 of the HOA states that ECWC shall comply with ‘Environment Management and Site Management Plans’ (EMSM Plan) at Annexure C to the HOA (commencing at page 35 of the Bundle [of Agreed Documents on Liability]).
Item 3 of the EMSM Plan refers to ‘Pollution Control’. Sub-items 3(i)(b), (c) and (d) in the EMSM Plan list a number of relevant categories of ‘Water Pollution’, with a corresponding description of the ‘Potential Impact/Issue’ for each, as follows:
Item 4 of the EMSM Plan addressed “Disposal of Waste” and is in the following terms (page 38 of the Bundle [of Agreed Documents on Liability]):

Item

Potential Impact/Issue

Preventative/Remedial Action

4 DISPOSAL OF WASTE

“Ensure waste items are disposed of in accordance with best waste management practises.”

Potential environmental incident arising from ineffective wast management practices.

“Dispose of all waste at an approved waste station.”

“Provide valid disposal certificates for each applicable item.”

“Submit waste disposal certificates or certification of appropriate disposal to the Principal where applicable.”

“Waste - Timber and Other Materials”

Possible fall into water below resulting in contamination or disturbance of seabed.

“Ensure proper stacking on barges/vessels.”

“Ensure barges/vessels are not overloaded.’’

“Secure all loads when transporting from site.”

“Remove wastes to land base.”

“Waste timbers to be loaded into designated bins and transported to an “authorised recycling depot."

“Demolished structures”

“Possibility of components falling into water during demolition works.”

“Structures to be transported by water to another site for disposal.”

“Ensure structures are demolished in accordance with a Safe Work Method Statement.”

“Ensure demolished structures are properly secured to barge during transportation.”

Provide all necessary records and receipts of materials transported and disposed of."

Item	Potential Impact/Issue	Preventative/Remedial Action
4 DISPOSAL OF WASTE “Ensure waste items are disposed of in accordance with best waste management practises.”	Potential environmental incident arising from ineffective wast management practices.	“Dispose of all waste at an approved waste station.” “Provide valid disposal certificates for each applicable item.” “Submit waste disposal certificates or certification of appropriate disposal to the Principal where applicable.”
“Waste - Timber and Other Materials”	Possible fall into water below resulting in contamination or disturbance of seabed.	“Ensure proper stacking on barges/vessels.” “Ensure barges/vessels are not overloaded.’’ “Secure all loads when transporting from site.” “Remove wastes to land base.” “Waste timbers to be loaded into designated bins and transported to an “authorised recycling depot."
“Demolished structures”	“Possibility of components falling into water during demolition works.” “Structures to be transported by water to another site for disposal.”	“Ensure structures are demolished in accordance with a Safe Work Method Statement.” “Ensure demolished structures are properly secured to barge during transportation.” Provide all necessary records and receipts of materials transported and disposed of."

Configuration of the Marina before demolition

Prior to the demolition of the pontoons at the Marina, the Marina comprised:
(i)   a main walkway 2.7 m wide and 67 m long (Main Walkway);
(ii)   a northern arm (Northern Arm), 2.1 m wide and approximately 102 m long, perpendicular to the Main Walkway;
(iii)   a southern arm (Southern Arm), 2.1 m wide and approximately 106 m long, perpendicular to the Main Walkway; and
(iv)   ‘finger pontoons', 1.2 m wide and each between 7.1 and 10.9 m long, perpendicular to both sides of the Northern Arm and Southern Arm.
The configuration of the Marina can be seen from the plan of the Marina prior to the demolition of the pontoons commencing at page 82 of the Bundle [of Agreed Documents on Liability].
The WUC involved the demolition of pontoons, pontoon walkways, pontoon fingers and pontoon gangways at the Marina, such waste including, without limitation, plastic flotation chambers, metal frames, wooden planks, carpet lengths, metal fixtures, and wiring derived from the demolition (Waste Materials).

Commencement, carrying out, and completion of WUC

ECWC commenced the WUC in November 2015. ECWC had primarily completed the WUC by 24 December 2015.
In performance of the WUC, ECWC stripped down various Waste Materials at the Marina into their component parts. Photographs and videos taken during the demolition depict ECWC’s activities, including Mr King and/or others acting on behalf of ECWC:
a.   walking on the pontoons;
b.   approaching the pontoons and demolished pontoons by boat;
c.   using a crane to remove demolished pontoon segments;
d.   moving floating demolished pontoon sections by boat; and
e.   loading demolished pontoon segments, including floatation chambers, onto a boat and onto a barge by crane.

Removal of the Waste Materials from the Marina

Following demolition of the structural components of the Marina, some of the demolished pontoons were stored at the Marina in an area described by Mr King as ‘the duck pond’. In a recorded interview with RMS on 22 March 2017 (the ROI), Mr King stated that:
(a)   ECWC commenced stripping down the demolished pontoon segments and disposing of their component parts from that location;
(b)   initially, portions of the stripped down metal frames were taken to a scrap metal yard, however, Mr King felt that stripping down the pontoons at the Marina and disposing of the Waste Material in this way “turned out to be just a headache” and was “too much of a cluster to keep pulling it all apart, and too slow”;
(c)   after this, the sections of demolished pontoon were either:
(i)   cut up and taken directly to the tip from Berowra;
(ii)   cut up and stored for around 12 months in a yard in Windsor before being taken to the tip and disposed of as general waste;
(iii)   given away; or
(iv)   transported by water to the Mooring;
(d)   in so far as (c)(iv) is concerned, “a whole bunch” of the smaller pontoon segments were tied together and towed by ECWC from the Marina to the Mooring; and
(e)   ECWC tied the Waste Materials together for their transportation by water from the Marina to the Mooring.
Aerial images obtained by RMS from the Office of Environment and Heritage depict the Dumb Barge attached to the Mooring on 6 December 2015 with no pontoon material attached around the Dumb Barge. Those aerial images are produced in the Bundle commencing at page 81.
In December 2015, an RMS officer sighted the Dumb Barge and a number of demolished pontoons and other items of building waste attached to the Mooring.
On 6 February 2016, an RMS officer inspected the Mooring and observed a Dumb Barge attached to the Mooring with numerous sections of pontoons, in poor condition, tied to it, together with rubbish including PVC pipe, planks, marine carpet and general debris. Photographs were taken during this inspection.
Aerial images obtained by RMS from the Office of Environment and Heritage depict the Dumb Barge at the Mooring with pontoon segments stored at the side of the Dumb Barge on 13 February 2016. Those aerial images are produced in the Bundle commencing at page 83.
On 16 February 2016, an RMS officer inspected the Mooring and observed a Dumb Barge attached to the Mooring with numerous sections of pontoons, in poor condition, tied to it. The pontoons were constructed of large black plastic buoyancy chambers with a combination of steel framework and timber decking. Photographs taken by the RMS officer on that date are produced in the Bundle commencing at page 85.
On 23 February 2016, an RMS Officer inspected the Mooring. Some decking and rubbish had been removed but a considerable amount of Waste Material remained on the barge.
In the ROI, Mr King stated:
(a)   The materials were ratchet-strapped together and attached to the Dumb Barge.
(b)   While the materials were being stored at the Mooring, Mr King observed people inspecting and showing interest in the pontoon segments that were stored at his Mooring and on three or four occasions found that pontoon segments were being taken away from the Mooring.
(c)   On multiple occasions, Mr King found that materials (including pontoons sections up to 9m in length) had been moved from the Mooring to various locations around Pittwater including the beach at Lovett Bay and Careel Bay (see map at page 100 of the Bundle).
(d)   On these occasions, Mr King rounded up the materials that he found and strapped them all together again at the Mooring.

The First Clean Up Notice issued to ECWC on 24 February 2016

On 24 February 2016, RMS issued a Clean Up Notice to ECWC pursuant to s 91 of the Protection of the Environment Operations Act 1997 (First Clean Up Notice). A copy of the First Clean Up Notice commences on page 94 of the Bundle.
The First Clean Up Notice directed “Mr Benjamin Peter KING of East Coast Wharf Constructions Pty. Ltd”, amongst other things, to remove, within seven days of 9am, Friday 26 February 2016:
“...the unsecured materials and pontoon type sections attached to commercial mooring CL8027 from the navigable waters of NSW, by means of land disposal at Cargo Wharf, Church Point, Pittwater, to an appropriate land based refused disposal site. The materials must not be moved to another location on navigable waters of NSW.”

Inspection of demolished materials stored at the Mooring on 7 March 2016

On 7 March 2016, an RMS officer observed that the materials the subject of the First Clean Up Notice continued to be attached to the Mooring. Photographs taken by the RMS officer on that date are produced in the Bundle commencing at page 98.

The Second Clean Up Notice

RMS issued a further Clean Up Notice to ECWC on 15 March 2016 (Second Clean Up Notice). A copy of the Second Clean Up Notice commences at page 105 of the Bundle.
The Second Clean Up Notice stated that “In view of the pollution hazard that is likely to occur as a result of the pontoons remaining in their current state in navigable waters”, Mr King and ECWC were directed within seven days of 9am, Friday 18 March 2016, to “remove the dilapidated pontoon type sections attached to commercial mooring CL8027” and to comply with the other directions in the First Clean Up Notice.

Removal of Waste Materials

In his record of interview, Mr King stated:
(a)   ECWC pulled lengths of pontoons out of the water, stripped them back and cut them up into smaller pieces at the Mooring.
(b)   Waste Materials were then taken to Church Point Cargo Wharf where they were taken out of the water with a crane and placed onto a truck.
(c)   A portion of the Waste Materials were disposed of by ECWC at landfill tips, taken to metal recyclers and also placed into storage.
On 23 March 2016, Mr King wrote to RMS on behalf of ECWC and stated that “I wish to advise that all action, requirements and clean up has been removed and taken to the tip” [sic]. A copy of that letter commences at page 107 of the Bundle.
At the end of March, an RMS officer observed that there were no more waste materials derived from the Marina at the Mooring.

RMS’ salvage of sunken pontoons

On 27 September 2016, RMS salvaged three pontoon segments from the seabed of Pittwater (the Pontoon Segments).
The Pontoon Segments were retrieved from the seabed of Pittwater at a location with the latitude and longitude co-ordinates of 33° 38.11932'S and 151° 17.19396'E.
The distance between the location of the Mooring and the salvage location has been been calculated by the Prosecutor’s geospatial analyst, Amanda Kildea, as approximately 282.88m.
The three Pontoon Segments formed part of the Berowra Waters Marina, prior to the works being undertaken by ECWC.
The Pontoon Segments consist of a galvanised metal frame lined with treated pine plank floorboards, surmounting black plastic flotation boxes 1.0 m x 0.9 m wide, and 0.72 m deep, with 28 flotation boxes in total. A roll of marine carpet was found tied to the third Pontoon Segment.
Photographs taken by an RMS officer at the time of the retrieval of the Pontoon Segments commence at page 116 of the Bundle [of Agreed Documents on Liability].
The deposition of the Pontoon Segments and connected materials into the marine environment of Pittwater resulted in an alteration to that environment by:
(i) direct means (smothering of the sea floor and the provision of hard structures where there were none beforehand); and
(ii) indirect means (altering the hydrodynamic environment surrounding the pontoons as they lay on the bottom).
The deposition of the Pontoon Segments into the marine environment caused actual harm and likely harm to the to the environment.

Criminal Antecedents and Compliance History

Mr King's criminal antecedents and non-compliance history are set out in Annexure A.
1. It is not necessary, at this point, to address any of the detail of Mr King's criminal antecedents and non-compliance history. To the extent relevant, they are later addressed in my consideration of matters concerning Mr King arising pursuant to s 21A(3)(e) of the Sentencing Procedure Act.
2. Although what has been set out above represents the fashion in which the Prosecutor frames the issues requiring consideration, I later set out, in my own terms, how I see the matters I am required to determine and the sequence in which it is appropriate to address them.
3. Of the elements in red from the Prosecutor's document, the following observations are to be made:
- with respect to the not conceded elements in pars 40, 41 and 44, all those matters are established on the basis of the affidavit evidence of Mr Nugent. Nothing during Mr Nugent’s cross‑examination challenged the accuracy of those matters. I therefore accept that they are established;
- with respect to the contested element of par 43, the accuracy of the description of the pontoons is self-evident from the photographs at folios 85 and 87 of Exhibit B (these are reproduced as Annexures A and B to this decision); and
- the matters set out in pars 55 and 56 are established by the unchallenged Expert Report of Ms Kildea.
1. As a consequence, only those matters set out by the Prosecutor at pars 57, 60 and 61 are the subject of controversy requiring my resolution of them.

Contextual background facts

In the document reproduced above, setting out the facts agreed between the parties (setting aside those matters in red which do require adjudication on my part), it is appropriate to note a number of undisputed factual matters which provide background context to the Defendants’ conduct. These, relevantly, are:

The contract with the Company for the demolition of elements of the Marina and the removal and proper disposal of the resultant waste was for $255,000, excluding GST;

The Company was required to comply with obligations contained in the Environment Management and Site Management Plans whilst carrying out the demolition works;

As part of the compliance with these requirements, obligations were placed on the Company concerning disposal of waste generated by the Company's demolition activities. These obligations are set out at par 32 of the document reproduced earlier at [34];

The agreed facts in Exhibit B include, at par 23, the following under the heading Removal of the Waste Materials from the Marina. This is included at par 38 in the amalgamated document reproduced above at [34]:

Following demolition of the structural components of the Marina, some of the demolished pontoons were stored at the Marina in an area described by Mr King as ‘the duck pond’. In a recorded interview with RMS on 22 March 2017 (the ROI), Mr King stated that:
(a)   ECWC commenced stripping down the demolished pontoon segments and disposing of their component parts from that location;
(b)   initially, portions of the stripped down metal frames were taken to a scrap metal yard, however, Mr King felt that stripping down the pontoons at the Marina and disposing of the Waste Material in this way “turned out to be just a headache” and was “too much of a cluster to keep pulling it all apart, and too slow”;
(c)   after this, the sections of demolished pontoon were either:
(i)   cut up and taken directly to the tip from Berowra;
(ii)   cut up and stored for around 12 months in a yard in Windsor before being taken to the tip and disposed of as general waste;
(iii)   given away; or
(iv)   transported by water to the Mooring;
(d)   in so far as (c)(iv) is concerned, “a whole bunch” of the smaller pontoon segments were tied together and towed by ECWC from the Marina to the Mooring; and
(e)   ECWC tied the Waste Materials together for their transportation by water from the Marina to the Mooring.
1. On 6 December 2015, aerial images of the Mooring with Mr King’s Dumb Barge attached to it show that there was no pontoon material visible in those images;
2. Aerial images taken on 13 February 2016 of the same location show that pontoon segments were stored at the side of the Dumb Barge;
3. Further relevant information concerning the pontoon and other materials located on, or attached to, the Dumb Barge are dealt with in the later description of the evidence given by Mr Nugent.

Mr King's record of interview

On 22 March 2017, Mr King was interviewed under caution by a Senior Maritime Investigations Officer employed by the Prosecutor. The transcript of this interview is in evidence in Exhibit B, at folios 132 to 180.
During the course of the sentencing hearing, I was taken to limited elements of the transcript of this interview. Some elements of the transcript of Mr King’s record of interview warrant reproduction later in these reasons. These primarily arise in the context of submissions by the Prosecutor or by Ms Hawes.
I have, however, read the entirety of the transcript for the purposes of considering those matters relevant, in my assessment, to the sentencing of the Defendants for the charges to which they have pleaded guilty. I have ignored those matters not relevant for this process.

The photographic evidence

It is also to be noted that a large number of photographs were in evidence. It will later be necessary to refer to some of them in the context of either evidence given by specific witnesses or matters raised during the course of submissions.
Two of the photographs are reproduced as annexures to this decision (with their provenance noted at the time their annexing is recorded).

The Defendants’ pleas of guilty

As earlier noted, on 1 September 2020, Ms Hawes entered pleas of guilty on the Defendants' behalf to the four remaining charges.
The charges to which the Defendants have pleaded guilty are strict liability ones. Mens rea (intention) plays no part and guilt is established by proof of the objective ingredients of each of the offences (Caralis v Smyth (1988) 65 LGRA 303 at 308). The Defendants’ pleas of guilty constitute admissions of all the essential elements of each of the offences (R v O’Neill (1979) 2 NSWLR 582 at 588).
I am satisfied, on the basis of the Agreed Statements of Facts earlier noted and the other evidence before me in these proceedings (together with the conclusions drawn by me where there has been a contest concerning the evidence), that the guilty pleas entered by the Defendants on these four charges are ones properly made and appropriately founded on the facts supporting the offences charged.
I am, therefore, satisfied that it is appropriate to convict each of the Defendants of each of the offences with which they have been charged.

The issues for determination

The first significant factual issue requiring determination is whether or not I can be satisfied, beyond reasonable doubt, that the three pontoon sections recovered from the floor of Pittwater were sections of the Marina which had been transported from the Marina to Pittwater. This is the contested element in red at par 57 of the Prosecutor’s document earlier set out.
Determination of this issue in favour of the position advanced by the Prosecutor (finding, as I do, for reasons later set out, that the sunken pontoon sections did come from the Marina) gives rise to consideration of what immediate and potential environmental harm was caused or was likely to be caused by their sinking and remaining, for a period of time, on the floor of Pittwater. In this context, I am satisfied that the environmental harm was significant. I later explain why I have reached this conclusion.
In this context, it is to be noted, expressly, that no matters relating to the causation of the sinking of these pontoon sections arises for consideration in these proceedings.
Second, it is necessary to consider the prior conduct records of each of the Defendants in order to consider whether or not these establish, in either instance, a further factor of aggravation for the purposes of s 21A(2)(d) of the Sentencing Procedure Act.
For this to be the case, it is necessary that I determine that the Prosecutor has established, beyond reasonable doubt, that I should reach such a conclusion. For reasons later discussed, I am satisfied that this factor of aggravation has been so established for Mr King but that it has not been established for the Company.
For completion of addressing potential factors of aggravation in s 21A(2), I observe that the Prosecutor does not submit (and I have no proper basis upon which I could conclude) that the offending conduct of the Defendants, for either charge, was committed for financial gain.
Having made those determinations concerning factors of aggravation engaged by s 21A(2) of the Sentencing Procedure Act, it then becomes necessary for me to undertake a process of instinctive synthesis, weighing each Defendant’s offending conduct for each charge; such factors of aggravation as may be engaged for that charge; and the relevant subjective circumstances of the Company and Mr King to determine what is the appropriate starting penalty to be imposed on each of the Defendants for each of the offences to which a plea of guilty has been entered.
Having determined those appropriate starting penalties, it is then necessary to determine, and apply, the appropriate discount to those penalties to recognise their utilitarian value to the system of administration of justice.
The final sentence determination matter requiring to be addressed for each of the Defendants arises from the fact that the two offences with which each of the Defendants is charged arose from the same overall course of conduct. This requires consideration of the extent to which it is appropriate to moderate the overall penalty for each of the Defendants having regard to the applicable principles of totality and accumulation.
The concluding matter concerning penalty arises from the fact that Ms Hawes made a submission proposing that s 6 of the Fines Act was sufficiently engaged to warrant further moderation of the appropriate total penalty to be imposed on the Company. This renders it necessary to address whether or not there is a sufficient (or, indeed, any) basis upon which this statutory process of penalty moderation might be engaged.
Having addressed all of the matters requiring determination arising from the pleas of guilty to each charge entered by each of the Defendants and resolving all matters relating to punishment for each of the Defendants for the offending conduct for which each is to be convicted, the last matter requiring determination concerns the question of a publication notice that the Prosecutor proposes should be mandated pursuant to s 250(1)(a) of the POEO Act. Three matters are engaged for determination on this topic. These three matters are all later addressed:

First, whether such a notice should be required to be published;

Second, the terms of the notice to be required to be published (if it is to be required); and

Third, what publications in which any required notice is to appear and any specific requirements for its appearance.

Sentencing Procedure Act factors

Introduction

Before turning to the various matters arising pursuant to s 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.
For the purposes of establishing any potential factor of aggravation, I must conclude that such factor is proved beyond reasonable doubt against the Defendant against which or who it is raised.
On the other hand, for favourable subjective factors applicable to the Company or Mr King (including those matters potentially arising from s 21A(3)), it is only necessary for the Company or Mr King to establish that factor on the balance of probabilities (R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (R v Olbrich) at 281).

Potential factors of aggravation

Introduction

The Sentencing Procedure Act provision in s 21A(2) requires me to consider whether there are any aggravating factors requiring to be taken into consideration.
Because the matters concerning whether or not any factor of aggravation has been established differ between the Company and Mr King in one respect (past criminal record), it is necessary to distinguish between them in my consideration of only this element addressing s 21A(2) of the Sentencing Procedure Act.
The only two potentially relevant aggravating factors are:

Whether or not the Prosecutor has established that Mr King’s past criminal history warranted such a finding; and/or

Whether the three sunken pontoon sections came from the Marina and had been transported from the Marina to Pittwater by the Company and, if so, was any environmental harm caused by the sunken pontoon sections significant.

The extent of prior offending

Introduction

The first potential aggravating factor requiring consideration is in s 21A(2)(d). It is appropriate to repeat the terms of this provision:

(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

At the outset, it is to be observed that the qualification in this provision set out in brackets is, self-evidently, irrelevant for present purposes.
However, the Prosecutor proposed, in the written submissions on sentence, that Mr King’s criminal history was such that I should conclude that, beyond reasonable doubt, it constituted an aggravating factor for present sentencing purposes. The Prosecutor's written submissions were in the following terms:

In Veen v R (No 2) Veen v The Queen (No 2) (1988) 164 CLR 465, the High Court stated (at 477):
The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.
The criminal antecedents of ECWC and Mr King are set out in Annexure A to the AFOS. Neither ECWC nor Mr King have prior convictions for any environmental offences.
However, Mr King does have an extensive criminal history, including a record of convictions for serious offences. It demonstrates that Mr King has, to use the High Court’s words, a “continuing attitude of disobedience of the law”. Mr King’s criminal history is an aggravating factor that the Court must take into account in determining the appropriate sentence (s.21A(2)(d) of the Sentencing Act).
Both ECWC and Mr King have an adverse maritime compliance history. Mr King, in particular, has been issued a significant number of penalty notices dating back to September 1996. ECWC and Mr King’s history of non-compliance is relevant to the Court’s consideration of an appropriate penalty. The Prosecutor recognises and accepts that the non-compliance history is not, however, of primacy (Director-General, Department of Planning & Infrastructure v Integra Coal Operations Pty Ltd [2012] NSWLEC 255 at [37]).
1. In order to understand the import of this submission, it is necessary to consider the material attached to the Prosecutor's written submissions setting out the past offending conduct of Mr King, particularly, and of the Company.
2. Ms Hawes addressed Mr King’s criminal history in her written submissions. She did not address this topic in her oral submissions. The documentary histories formed part of the agreed facts. The short element of her written submissions, relevantly at par 18(a), was in the following terms:
It is submitted that the Prosecutor has incorrectly ascertain what is relevant in the question of criminality based on Veen v R (No 2) Veen v The Queen (No 2) (1988) 164 CLR 465.
a. Attention is draw to the sentence "continuing attitude of disobedience of the law". The "law" which is referred to is not a general notion of all the existing laws under both State and Federal Law. Rather, in its broader construction, must refer to the legislation in question.
1. Before turning to general matters concerning (particularly) Mr King’s record, it is appropriate to set out the Prosecutor’s oral submission response to the above submission from Ms Hawes. These were (Transcript 23 September 2020, page 40, lines 32 to 43):

Paragraph 18 makes a submission about past offending behaviour, and puts forward an approach to the High Court's decision in Veen, which we simply don't accept. We say your Honour would take the prior offending into account in the manner in which we have suggested it is relevant, in our written submissions. I don't need to address that in any significant detail, and content to rely on what we said in writing.

But the logical consequence of what's said in para 18(a) is to confine; rather than a broad construction, it's a narrow construction, one would've thought, which confines the relevance of prior offending behaviour in a way that means it's only relevant if you've committed that exact offence before. We say that's a nonsense.

Before addressing the wider matters arising from the criminal history of Mr King, it is appropriate to dispose of the narrow approach advanced by Ms Hawes.
A reading of the entirety of the reasons for decision of the plurality in Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14 (Veen v The Queen (No 2)), commencing on 477 to the top of 478, in describing the first of the two subsidiary principles set out on their Honours’ analysis of that principle makes it clear that consideration of the “antecedent criminal history of an offender” is not to be constrained in the fashion proposed by Ms Hawes but, as submitted by the Prosecutor, is to be weighed in its entirety as a matter to be considered in the sentencing process.
Whether Mr King’s criminal history, particularly, is to be regarded as giving rise to a factor of aggravation for sentencing purposes is addressed below.

The Company’s history

It is appropriate to note, initially, that the Company has a limited relevant history of having had three penalty notices (each attracting a penalty of $500) issued to it between mid-2018 and March 2019 for failing to comply with the conditions of its licence. None of these constitutes convictions.
The facts supporting the breach in each instance are not revealed in the material provided by the Prosecutor. I am satisfied that there is no basis upon which I could conclude that the Company's history constituted an aggravating factor.

Mr King’s history

Mr King’s history, however, is extensive. It comprises a range of matters dealt with in court (primarily the Local Court) from 1993 and includes a number of maritime offences of operating a vessel with middle range prescribed concentration of alcohol. Between 1993 and early 2018, Mr King was convicted of a number of offences involving a total of 14 court appearances over that period of time.
Mr King’s most recent conviction arose in mid-2018, being a conviction for assault occasioning actual bodily harm.
In addition, Mr King also has an extensive non-compliance history of maritime regulatory requirements between 1996 and 2016. The history provided by the Prosecutor lists 33 such instances. However, I observe that in 12 of those instances, although a penalty notice number and details of the offence are recorded in the penalty column of the Prosecutor’s table of these occurrences, I am provided with the notation “N/A”. I have no information as to the basis upon which a penalty notice can be issued for an offence but no penalty imposed for these instances. Under these circumstances, I consider it appropriate to ignore those 12 items. However, there remain 21 maritime compliance breaches for which a penalty notice was issued, and a monetary penalty imposed.
These breaches together with the various criminal offences that required Mr King to go before a court; be convicted; and be sentenced establish that, for Mr King, I am satisfied beyond reasonable doubt that this factor of aggravation is made out.
As a consequence, this is a matter requiring subsequent consideration in Mr King’s sentencing - particularly as to the extent to which an element of specific deterrence is to be incorporated for him in the starting sentences appropriate for each offence with which he is charged.

Environmental harm

Introduction

First, it is to be observed that, in addition to the necessity to consider environmental harm in the context of s 21A(2)(g) of the Sentencing Procedure Act, s 241(1)(a) of the POEO Act also requires that I have regard to the extent of the harm caused, or likely to be caused, to the environment by the offending conduct of the Defendants. Other factors from s 241 of the POEO Act requiring consideration are those in subss (b), (c) and (d). In this context, I have earlier set out at [16(3)] the definition of harm in the POEO Act.
As was observed by Preston CJ in Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419, at [145], it is not only demonstrated actual harm but also the potential for, or risk of, harm that needs to be considered.
To actual and potential environmental harm, s 241(1) of the POEO Act also expressly raises three additional factors concerning environmental harm as requiring consideration. These are:

(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,

(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,

(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,

These are also necessarily implicitly raised for consideration in the context of my evaluation of harm as a potential aggravating factor raised by s 21A(2)(g) of the Sentencing Procedure Act.
The Prosecutor advances three separate aspects of what transpired after the Defendants had transported material from the Marina to Pittwater as evidencing environmental harm. Those three aspects are:

The harm to the marine environment (both actual and potential) arising from the presence of the three sunken pontoon sections on the floor of Pittwater;

The dispersal of sections of the material transported from the Marina as a consequence of the becoming detached from the Company's Dumb Barge at the Mooring; and

The aesthetic impact on users of Pittwater arising from their being able to see the volume of unsightly detritus comprising the totality of the waste material transported from the Marina to Pittwater.

There are two initial observations to be made concerning these factors. First, nothing concerning the causation of the sinking of the three pontoon sections is alleged by the Prosecutor against the Defendants. What arises for consideration, the Defendants contesting whether the Prosecutor has established beyond reasonable doubt that three sunken pontoon sections came from the Marina, is whether I can be satisfied, beyond reasonable doubt, that this was the fact and, as a consequence if I so concluded, how the actual and potential environmental harm of their presence on the floor of Pittwater should be characterised.
In this context, I need to consider whether the Prosecutor has established the provenance of the three sunken pontoon sections as originating from the Marina. If I am so satisfied (as I am for the reasons later set out), it is then necessary to consider what elements arise in the context of environmental harm that has been caused to, or are likely to have had on, or were at risk of being caused to, the marine environment. In this context, the factor of control over these actual or potential outcomes also requires to be addressed.
Second, environmental harm posited by the Prosecutor as arising from the three sunken pontoon sections being on the floor of Pittwater was said to be of greater significance than either of the other environmental harm matters pressed by the Prosecutor. In this regard, that environmental harm, it was put, was serious (but not sufficient so as to constitute a factor of aggravation).
With respect to the elements of the material from the Marina which became detached from the Dumb Barge and went elsewhere on Pittwater, it is not suggested by the Prosecutor that these caused actual environmental harm prior to them being collected by Mr King and returned to the Mooring, merely that they had the potential to cause such harm.

The three sunken pontoon sections

As earlier set out, three sunken pontoon sections were located on the floor of Pittwater and retrieved by the Prosecutor. They were transported by the Prosecutor to its storage facility at the inner-western suburb of Rozelle.
At issue in the proceedings is whether or not I can be satisfied beyond reasonable doubt that these retrieved pontoon sections formed part of the demolition material transported from the Marina to Pittwater by the Defendants.
The submission made by Ms Hawes was that the Prosecutor’s evidence failed on this point, and that, therefore, evidence concerning actual or potential environmental harm as a consequences of these pontoon sections being on the floor of Pittwater was not relevant in my assessment of the extent of the impact of the Defendants’ offending conduct.

The evidence - a general outline

Evidence relied upon by the Prosecutor said to establish the provenance of these three retrieved pontoon sections was from:

Ms Amanda Kildea, a geospatial analyst who gave evidence that the pontoon sections were located on the floor of Pittwater at a distance of 282.88 metres from the Mooring in a north-north-east direction. Her affidavit was at folios 940 to 955 of the Court Book. She was not required for cross-examination;

Mr Conradi, the now retired manager of the Marina. Mr Conradi gave evidence identifying the three pontoon sections as being amongst the material demolished from the facilities of the Marina. Mr Conradi's affidavit was at folios 773 to 884 of the Court Book. The photographic material exhibited to his affidavit became Exhibit C. Mr Conradi’s references to “Nayland” are to an officer of the Prosecutor. Mr Conradi was required for cross-examination. His evidence requires later detailed consideration; and

Mr MacDiarmid, a former employee of the Marina. Mr MacDiarmid had been responsible, during the course of his employment at the Marina, for much (but not all) of the maintenance tasks on the pontoons of the Marina. Mr MacDiarmid's affidavit was at folios 901 to 913 of the Court Book and the material exhibited to his affidavit became Exhibit E. Mr MacDiarmid was required for cross-examination. His evidence also requires later detailed consideration.

Mr Conradi's evidence

Mr Conradi's affidavit evidence commenced by describing his past roles at the Marina and the period of his employment at the Marina in the following terms:

I was Marina Manager at Berowra Waters Marina for approximately 6 years. I am now retired.
In my previous role I was responsible for financial matters, managing berthing clients, retail operations, operation of the boat hire service, staff supervision and maintenance of the marina complex including the pontoons and the buildings.
Before that, I was the Assistant Marina Manager at Berowra Waters Marina and had also held various other positions, including dock master. I joined Berowra Waters Marina in 2000.
1. The elements of his affidavit explaining why he concluded that the three retrieved pontoon sections he had inspected at the Prosecutor’s premises at Rozelle were amongst sections demolished from the Marina were in the following terms:
I am very familiar with the pontoons that we had at Berowra Waters Marina before the refurbishment because I walked up and down them for 16 years.
I could tell that the pontoons which Nayland showed me were the ones from Berowra Waters Marina because of the type of construction and various identifying features.
There were cleats on the pontoons that I remember installing personally. The carpet on the pontoons was also recognisable because to the best of my knowledge, no other marina in the SOFAC area had carpeted pontoons.
I noticed the pontoons were in a poor condition. This is another characteristic of the pontoons which I recognised. This is because towards the end of the life of the old marina, we had to regularly contend with rusted eye bolts pulling out or snapping off and make jury rigs for mooring the boats.
The pontoon with the tag Exhibit 10108/1 was a finger pontoon which I measured to be 7.1m x 1.2m. This is consistent with the finger pontoons on the south side of the South Arm. I also saw four eyebolts in the pontoon with ropes attached which were used to moor the stern of the boat to the pontoon.
The pontoon with the tag Exhibit 10108/2 was a part of the South Arm. I measured the pontoon to be 9m x 2.1m, which means it was not part of the Main Walkway. I also saw that there was a pile guide and two holes drilled into the pontoon. Staff at the marina had attached the pile guide and drilled these holes to allow the mounting of advertising flags for boat brokerage. These flag holes were only drilled into the first three fingers of the South Arm. There was also a power cable for 240V electrical power and a white pipe for potable water which is the same as the power cables and piping for potable water.
The pontoon with the tag Exhibit 10108/3 was part of the North Arm. I measured it as 2.1m wide which eliminates it as part of the Main Walkway because it wasn’t wide enough. I saw attached to this pontoon a cleat which was added when the eyebolts rusted through.
I recall that at some time prior to the refurbishment of the wharf we had a cleat and bolted that to the pontoon as a replacement for the eyebolts. I know that this type of cleat was on a pontoon approximately two thirds of the way along the North Arm. We normally used eyebolts so I remembered clearly when we had installed a cleat.
I also saw Nayland unroll some marine carpet which was tied to the pontoon. The marine carpet was the same type as that which we had laid on the old marina. This pontoon had black poly and copper piping for potable water and as well as waste water outlet pipes. I also saw the pontoon had 240V electrical cables. These pipes and cables were consistent with the pontoons at Berowra Waters Marina. The white painted toe rails and the deflated fender were also consistent with the old pontoons.

Environment Protection Authority v Laison [2015] NSWLEC 89

Environment Protection Authority v Alcobell Pty Ltd; EPA v Campbell [2015] NSWLEC 123

Environment Protection Authority v Foxman Environmental Development Services; Environment Protection Authority v Botany Building Recyclers Pty Ltd; Environment Protection Authority v Foxman(No 2) [2016] NSWLEC 120 (Foxman)

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

Environment Protection Authority v Dib Hanna Abdallah Hanna 235 LGERA 114; [2018] NSWLEC 80 (Hanna)

Environment Protection Authority v Edward Gilder [2018] NSWLEC 119

Environment Protection Authority v Rands [2019] NSWLEC 23

Environment Protection Authority v Hughes [2019] NSWLEC 108

Environment Protection Authority v Albiston [2020] NSWLEC 80

I have examined the terms of the full decision in each instance. There are two observations to be made concerning these cases.
The first is that I consider the Foxman and Hanna decisions are outliers as a consequence of either the nature or the quantity of the waste involved in the offending conduct. Excluding them gives a range of financial penalties of between $6,000 and $70,000 against which to assess the offending conduct here involved (bearing in mind, of course, that the maximum penalty applicable to the Company’s offending conduct is four times the maximum penalty applicable to Mr King’s offending conduct in each instance).
Second, in circumstances here applicable only to Mr King (for reasons earlier discussed), his past record of offending conduct (in both a general, societal sense and, more specifically, with respect to his significant disregard of maritime regulatory requirements) sets his offending conduct apart from that of the offenders in the cases to which the Prosecutor draws my attention. As a consequence, there is a significantly greater necessity for an element of specific deterrence to be incorporated in the sentencing outcome for Mr King than arises in the sentencing outcome for the Company (even though the Company may be regarded otherwise as being Mr King’s alter ego).

The appropriate starting sentences

Introduction

The appropriate process to be undertaken in sentencing the Defendants is one which requires me to perform an instinctive synthesis of all relevant factors, objective and subjective, for each of them separately in order to determine what might be an appropriate starting penalty to punish that Defendant’s offending conduct (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25). This instinctive synthesis requires me to have regard to whereabouts within a range of seriousness the offending conduct should be regarded as falling, having regard to the maximum penalty of $1,000,000 for the Company’s offences and to the maximum penalty of $250,000 for the Mr King’s offences.
Camilleri's Stock Feeds (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.

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.
The sentence to be imposed must reflect all the relevant objective circumstances of the offence and subjective circumstances of the Defendant (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)).
This process permits me to arrive at a starting sentence for each offence for each Defendant to which the appropriate discount is to be applied for the entry of the guilty pleas.
Although the characterisation of the offending conduct for each offence charged for each of the Defendants has led to a common (but differentiated between the charges) conclusion for each Defendant, the appropriate starting penalty for each of them must necessarily differ given that the Parliament has established, by the statutory definition of the maximum penalty for a corporation being four times that of an individual. The sentencing outcomes should appropriately reflect that differential.
This differentiation in position is applicable for each of the offences to which the Company and Mr King have pleaded guilty. As a consequence, my instinctive synthesis undertaken for each charge results in generally proportionally consistent but necessarily different sentencing outcomes for each of them on each of the charges.

The waste transportation charges

I have earlier explained why I have concluded that the offending conduct giving rise to these charges is to be described as being toward, but not at, the bottom end of the low range. As a consequence, I am satisfied that the appropriate starting penalty to be imposed on the Company for this offence should be $40,000. Having regard to the greater need for specific deterrence for Mr King, but also having regard to matters of proportionality, I am satisfied that, therefore, the appropriate starting penalty to be imposed on Mr King for this offence is $12,000.

The waste storage charge

I have earlier explained why I have concluded that this offending conduct is to be regarded as of greater seriousness than that involved with the waste transportation charge. I have explained why I am satisfied that this offending conduct is appropriately characterised as being toward, but not at, the upper end of the low range.
As a consequence, it is appropriate that the penalties to be imposed on the Company and on Mr King for this offending conduct are appropriately greater than those which I have concluded should follow from the waste transportation charge. For this charge, I am satisfied that the appropriate penalty to be imposed on the Company is $90,000 whilst that appropriate to be imposed on Mr King, also having regard to the greater need for specific deterrence for him but also having regard to matters of proportionality, is $27,000.

The Defendants’ guilty pleas

Introduction

The Prosecutor accepts that the Defendants have entered their guilty pleas thus avoiding the necessity for a contested criminal trial and that, as a consequence, these pleas have had significant utilitarian value entitling the Defendants to discounts on the otherwise appropriate sentences. The maximum discount permissible would be 25% of the penalty that would otherwise be appropriate to be imposed (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383).

The Prosecutor’s submissions on the guilty plea discount

In the Prosecutor’s written submissions, at pars 82 to 84, the Prosecutor addressed the extent to which it proposed that the Defendants should receive a discount on the appropriate sentences for each offence. These submissions were:

In the present case, the pleas of guilty were not entered by the Offenders at the first reasonable opportunity. Rather, they were entered by the Offenders on day one of the liability hearing. It is submitted that discount at the lower end of the range should be allowed recognising the limited utilitarian benefit of the plea.

The Court’s determination of the disputed facts on sentence is also relevant to the utilitarian value of the Offenders’ pleas. The Prosecutor has been put to proof on a number of facts relevant to the Court’s assessment of the objective seriousness of the Offences. To prove these facts, the Prosecutor will read the evidence of seven prosecution witnesses. In R v AB [2011] NSWCCA 229 Johnson J observed (at [32], with whom Bathurst CJ and Hoeben J agreed):

… a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing.

If the Court is satisfied that the Prosecutor has proven, beyond reasonable doubt, the facts asserted in these submissions that are in dispute, the Prosecutor submits that the utilitarian benefit of the Offenders’ plea has been eroded to a significant extent (see also Morton v R [2014] NSWCCA 8 at [35]).

The Defendants’ position

No express written or oral submissions were made on behalf of the Defendants concerning the appropriate discount to be afforded as a consequence of the entry of the guilty pleas on behalf of each Defendant to the two remaining charges.
However, under the circumstances, I consider that it is appropriate to assume, for this purpose, that the element of the Defendants’ written submissions at par 25 earlier quoted, at [215], should be inferred to be supporting a proposition that a significant discount on the otherwise appropriate sentences should be afforded to each Defendant.

Consideration

In this instance, the Prosecutor first commenced the original three proceedings against the Defendants on 9 November 2018. There were 25 attendances during the following more than a year until, on 1 September 2020, agreement was reached between the Prosecutor and the Defendants so that, on 1 September 2020, the Prosecutor agreed to withdraw the Tier 1 charge against the Company and against Mr King resulting in both Defendants pleading guilty to the two remaining Tier 2 charges laid against them.
This process led to removal of the necessity for a contested trial on liability (a trial which would have led to the conviction of the Defendants on the two charges for which they are to be sentenced - based on the agreed facts and my earlier explained conclusion that those agreed facts provide a proper basis for the conviction of the Defendants on the waste transportation and waste storage charges). This efficiency had benefits for the administration of justice by avoiding the necessity for such a contested liability hearing and avoiding the necessity for a subsequent sentencing hearing.
However, it is to be noted that the guilty pleas entered by the Defendants to the two charges for which each is here being sentenced were not entered on the earliest possible occasion and that the Defendants are not, therefore, entitled to receive the maximum conventional discount of 25% for the guilty pleas that might otherwise apply.
I am satisfied that the Defendants are entitled to more than a purely nominal discount on sentence as a consequence of their guilty pleas but that this needs to be balanced against the extent of the preparation to which the Prosecutor has been put in order to be ready to commence a lengthy contested hearing on liability. Under the circumstances, I have concluded that the appropriate discount to be allowed to each of the Defendants is 10% for each of the charges to which they have pleaded guilty.
As a consequence, the penalty to be imposed on the Company after discount for the guilty plea for the offence against s 143(1) is $36,000, whilst that for the s 144(1) offence is $81,000.
For Mr King, the appropriate penalty after discount for the guilty plea for the offence against s 143(1) is $10,800 whilst that for the s 144(1) offence is $24,300.

The Defendants’ financial capacity to pay a fine

I have earlier set out the terms of s 6 of the Fines Act, a provision that invests me with discretion to take into account a defendant’s financial circumstances in determining what would be an appropriate penalty to impose.
For there to be some proper basis to engage a potentially positive outcome for a defendant as a consequence of invoking of the provisions of s 6 of the Fines Act, there must be some proper evidentiary basis for it. For such a positive conclusion that penalty moderation based on limited capacity to pay apply, proper evidence may include documentary information on assets or provision of bank records or of taxation returns (for examples where evidence was provided, see Wollongong City Council v Eldridge [2017] NSWLEC 35 and Shoalhaven City Council v Knight [2019] NSWLEC 138).
In these proceedings, all I have been provided with is the following statement from Ms Hawes's written submissions at par 22:

The company does not hold a large quantity of assets and it will most certainly go bankrupt should a heavy penalty be imposed.

Zero evidence has been provided on behalf the Company in support of this bold proposition. No further consideration is required of it, in the absence of any evidentiary basis whatsoever to provide a foundation for that submission.
This submission is to be rejected as being without merit.

Totality and accumulation

I have earlier set out the starting sentences and the guilty plea discounts to be applied for the offending conduct of the Company and of Mr King. However, in order to determine what should be the final penalty imposed for each offence on each of them, it is necessary that I consider what further moderation should be applied to those penalties to reflect the fact that the two offences for each Defendant arose out of the same general course of offending conduct. This requires consideration of how the penalties should be accumulated for each Defendant to reflect the totality of that Defendant’s offending conduct (in lieu of treating, separately, each of the Defendants’ punishments for each of the offences).
In this context, although I have undertaken my analysis of the s 144(1) offence second (both as a consequence of its place in the statutory sequence and in its temporal occurrence), it is undoubtedly the position that, as my earlier analysis and conclusions make clear, this offence is of a significantly greater degree of culpability than the transportation offence.
In this context, to the extent that it is appropriate that there be some further adjustment in the penalties, I have concluded that a greater proportion of that adjustment should come from the transportation offence rather than from the more serious offence where actual and future environmental harm have been proved.
As a consequence, I have concluded that the total overall penalty appropriate to be imposed on the Company for the two offences for which it is to be convicted is $105,000 (in lieu of the total starting penalties of $117,000), with this to be apportioned as being $75,000 for the s 144(1) offence and $30,000 for the s 143(1) offence.
Similarly, for the two offences for which Mr King is to be convicted, the total overall penalty appropriate to be imposed on him for the two offences for which he is to be convicted is $28,000 (in lieu of the total starting penalties of $35,100) with this to be apportioned as being $20,000 for the s 144(1) offence and $8,000 for the s 143(1) offence.

Costs

As earlier noted, ss 257B and 257G of the Criminal Procedure Act operate to permit me to order that the Defendants are jointly liable to pay the Prosecutor's costs of these proceedings.
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 either Defendant. There is, therefore, no relevant “downward pressure” to be applied to the appropriate penalties.
It is, therefore, appropriate simply to order that the Defendants pay the Prosecutor’s costs as agreed or assessed.

Requiring publication notices concerning the offences

Introduction

I have earlier set out the terms of s 250(1)(a) of the POEO Act, the provision permitting the imposition of a requirement that a convicted defendant publicise a prosecution and its outcome. In these proceedings, the Prosecutor has sought that such an order should be made requiring a single notice addressing the offending conduct by, and conviction of, the Company and Mr King be published in a boating magazine (Afloat Magazine); the Manly Daily (a newspaper circulating within the northern beaches region of Sydney, encompassing Pittwater, the location of the more egregious offending conduct of the Defendants); and the Daily Telegraph, a more widely read newspaper which would carry the deterrent message to the broader community.
Before turning to addressing the question of whether publication of such a notice should be mandated (requiring such a notice being resisted by Ms Hawes on behalf of the Defendants) and, if so, where it is to be published and other technical matters relating to publication, it is appropriate to make a general observation concerning such notices.
Such publication has two deterrent effects, effects that are in addition to the specific and general deterrent outcomes sought to be achieved by the imposition of a penalty on an offender.
The first of those effects is the “name and shame” impact on the reputation of an offender within the relevant local community and, where also relevant, within the industry within which the offender operates. The second effect is that it puts other operators in that same industry on notice that, if they too offend, similar penalties and “name and shame” consequences are likely to follow for them.

The Defendants’ resistance to a publication order

In her written submissions, Ms Hawes opposed me making a publication order. She said:

It is our view that a publication order is excessive in the circumstances. Considering the low impact of the offences and the size of the company. It will directly impact the reputation of the Company making it difficult to maintain its business. Considering that is a first offence with a low environmental impact, the publication order will not only be unfair but disproportionate to the offence in question.
1. In his oral submissions in response to this written submission on behalf of the Defendants, the Prosecutor said, with respect to the proposal for a publication order (Transcript 23 September 2020, page 41, lines 9 to 31):

MUSTON: Paragraph 23 addresses the publication order, and the suggestion made by the defendant is, it's excessive in the circumstances. And that is said by reference to what is said to be the low environmental impact of the offending behaviour. The first point, of course, the defendant's position in respect of this exercise proceeds on the assumption that the sunken pontoons are not to be taken into account, and therefore it's suggested that there is little to no environmental impact. We say that notion falls away if your Honour accepts what we say about the pontoons which were salvaged.

But whether or not that's right, whatever the environmental impact may or may not have been, in the context of environmental offending, it is in the context of offences such as these, a publication order of the type proposed by the prosecutor is a very important tool from the perspective of general deterrence.

And we say, in cases such as this, it is entirely appropriate for a publication order to be made, principally in furtherance of the objective of general deterrence; but equally, specific deterrence.

Specific deterrence is achieved through the impact, the reputational impact, that an advertisement or publication of the type proposed, might have. Having said that, other than what might be said to be an intuitive expectation that adverse publicity might have a negative impact of some sort, there is, of course, no evidence at all to support the proposition, to indicate what the reputational damage or its consequences in the context of this business might be.

Consideration

Making a publication order, a power expressly provided for as an order which is additional to, and not in substitution for, the appropriate punishment for the offending conduct forms an important element of general deterrence. To the extent that making such an order also impacts on the reputation of the Defendants, that is also an important element, through that "name and shame", for a specific deterrent effect on these Defendants.
There is no valid reason idiosyncratic to these Defendants why such an order ought not be made. I therefore propose to make such an order for a single notice addressing the conduct of both Defendants for both of their offences.

The terms of the notice proposed by the Prosecutor

The Prosecutor provided me with a draft of the terms of the notice that it proposed that I should order to be published. The terms of that notice are set out below:

ANNEXURE C:

SUGGESTED FORM OF WORDS FOR PUBLICATION PURSUANT TO AN ORDER MADE UNDER S.250(1) OF THE ACT
Prosecution of East Coast Wharf Constructions Pty Ltd (ACN 113 385 443) and Benjamin Peter King for Environmental Offences
1   These offences occurred between Berowra Waters and a commercial mooring located in the waters of Pittwater, to the west of Scotland Island.
2   The commercial mooring was licenced to, and occupied by, East Coast Wharf Constructions Pty Ltd (ACN 113 385 443) (ECWC). During the offence periods, Benjamin King was, and is currently, the sole shareholder, director and secretary of ECWC.
3   The prosecution was commenced by Transport for NSW following an investigation conducted by its NSW Maritime Branch.
4   On [insert date here], pursuant to a plea of guilty entered by ECWC and Mr King on 3 September 2020, the Land and Environment Court of New South Wales found:
a.   ECWC guilty of the following offences under the Protection of the Environment Operations Act 1997 (NSW) (the Act):
(i) Between 5 December 2015 and 24 December 2015 at Pittwater ECWC committed an offence contrary to s.143(1) of the Act in that it transported waste to its commercial mooring that could not be used as a waste facility for that waste.
(ii) Between 24 December 2015 and 23 March 2016 at Pittwater ECWC committed an offence contrary to s.144(1) of the Act in that it used its commercial mooring as a waste facility without lawful authority to do so.

b. Mr King guilty of the following offences under the Act:
(i) Between 5 December 2015 and 24 December 2015 at Pittwater Mr King committed an offence contrary to s.143(1) of the Act, by reason of s.169(1) of the Act, in that he was at all times the director of ECWC when it transported waste to its commercial mooring that could not be used as a waste facility for that waste.
(ii) Between 24 December 2015 and 23 March 2016 at Pittwater Mr King committed an offence contrary to s.144(1) of the Act, by reason of s.169(1) of the Act, in that he was at all times the director of ECWC when it used its commercial mooring as a waste facility without lawful authority to do so.

5 The Court found, amongst other things, that the deposition of the pontoon segments into the marine environment, as a consequence of the offence, caused actual harm to the environment and was likely to cause harm to the environment.
6 ECWC and Mr King were ordered to pay a combined penalty of $[insert amount here]. They were also ordered to pay the Prosecutor's costs of the proceedings in the amount of $[insert quantum, if order so made].

The terms of the notice to be published

During the course of the hearing, I raised with the Prosecutor my concern as to the highly legalistic nature of that which was set out in the notice, particularly the elements setting out, in a legalistically precise fashion, the statutory foundation for the offences to which the Defendants had pleaded guilty. I indicated that I was attracted to rewriting those sections of the proposed notice in a less legalistic form. I invited the Prosecutor to comment on this proposition, with no objection being forthcoming to me taking this course.
During the course of preparation of this judgment, I concluded that it was appropriate not only to rewrite those elements of the Prosecutor's draft but to undertake a more extensive revision (in effect, producing a new notice) so that the information conveyed was in Plain English. The draft which I have determined to be appropriate is reproduced below and is also, for the purpose of making the publication orders, reproduced at Annexure C:

Conviction of East Coast Wharf Constructions Pty Ltd (ACN 113 385 443) and Benjamin Peter King for Environmental Offences

East Coast Wharf Constructions Pty Ltd (the Company) and Mr Benjamin King have each been convicted by the Land and Environment Court of NSW of two waste-related offences. The offences were breaches of the Protection of the Environment Operations Act 1997. Mr King was, and is currently, the sole shareholder, director and secretary of the Company. In these capacities, Mr King has what is known as “special executive liability” - meaning he is also liable for offences committed by the Company.
The first offences arose from the Company transporting sections of a marina it demolished at Berowra to the Company’s commercial mooring located in Pittwater to the west of Scotland Island. This constituted the offence of transporting waste to a location that could not be used as a waste facility for that waste.
The second offences arose from the Company using its commercial mooring as a location to store the demolished marina materials pending further processing and disposal. This constituted the offence of using its commercial mooring as a waste facility without lawful authority to do so. The Court found, amongst other things, that three marina pontoon segments from those demolished from the Berowra Marina that had sunk in the marine environment of Pittwater caused actual harm to the environment and were likely to cause harm to the environment.
The prosecutions were commenced by Transport for NSW following an investigation conducted by its NSW Maritime Branch.
On 1 September 2020, the Company and Mr King pleaded guilty to these offences. On 16 October 2020, the Land and Environment Court convicted the Company and Mr King of the offences to which they had pleaded guilty.
The Company and Mr King were ordered to pay a combined penalty of $133,000 and to pay the Prosecutor's costs of the proceedings. In addition, they were also ordered to pay for the cost of publishing this notice.

The appropriate publications in which the notice is to appear

I also raised with the Prosecutor the question of the appropriateness of requiring publication in the Daily Telegraph in addition to the Afloat Magazine and the Manly Daily. This exchange was in the following terms (Transcript 23 September 2020, page 42, lines 16 to 33):

HIS HONOUR: ….. - the other matter that I want to ask you to address is why The Daily Telegraph?

MUSTON: The Daily Telegraph is a newspaper of wide distribution within the area where offences of this type occurred. There may once have been a time when there were smaller, more locally based or regional newspapers that might have been more suitable. But it would seem that those days‑‑

HIS HONOUR: Well, you proposed the Manly Daily, which to my experience is regarded as a - I've got no idea whether it is a publication that has now moved entirely online or not - to my knowledge is generally regarded as a journal of repute in the Manly‑Warringah region. I'm happy to be persuaded that it should be The Daily Telegraph, but you will need to give me some reason why, given that the nature of the particular offence is significantly geographically confined.

MUSTON: I can't provide your Honour with any further submissions in relation to why your Honour, in addition to the Manly Daily, order that the publication be made in The Daily Telegraph.

It is clear from the terms of the High Court's decision in Veen v The Queen (No 2) that issues of proportionality in a sentencing process remain fundamental. In this instance, I am not satisfied that it would be proportionally appropriate to require that the notice that the Defendants are to be ordered to publish should be published in the Daily Telegraph. I have reached this conclusion not only because of the localised nature of the offending conduct (the Manly Daily reaching the region where the Pittwater-impacting offending conduct occurred), but because the Afloat Magazine is likely to reach the other relevant industry participants. In addition, because of the fact that I am satisfied that the Defendants' offending conduct for each offence remains within the low range of offending conduct encompassed by the two statutory provisions which have been breached, it would also be cost disproportionate to require publication in the Daily Telegraph.
I therefore propose only to order that the publication notice appear in the Afloat Magazine and in the Manly Daily.

The Manly Daily is now a digital-only newspaper

As it is a matter of public record that many smaller, regional newspapers have now moved to digital publication for economic and pandemic reasons, I enquired of the Prosecutor whether this was the case with the Manly Daily. The Prosecutor advised me that it had moved to online publication only.
During the course of preparation of this judgment, I discovered that the Manly Daily now came in two electronic forms. These are the Manly Daily Online and the Manly Daily Digital Edition.
The first of these is, I discovered, what amounts to a streaming service into which advertisements may be inserted. I am not aware of the precise circumstances of, and costs of, such insertion into this news stream (it being an ongoing process and advertisements can be retained for display, apparently, for varying periods of time).
On the other hand, the Manly Daily Digital Edition is a facsimile newspaper which, when viewed on screen, has all the presentational attributes of a conventional printed tabloid newspaper. This presents the Manly Daily Digital Edition in exactly the same format as had been that of the past paper-based Manly Daily. Page layout and numbers are as if reading a conventional newspaper, only in the form of an electronic facsimile of such a document.
For such an electronic facsimile newspaper, conventional specification of page number and presentational position can be ordered in the same terms as would be required for a print newspaper.
However, because such a facsimile newspaper can be viewed using a variety of electronic devices with differing screen sizes, a conventional dimension specification for such an advertisement is inappropriate. The appropriate specification is to nominate the proportion of the facsimile print page which is to be occupied by the notice. An examination of an edition of the Manly Daily Digital Edition reveals the various size of advertisement spaces available relevant to the page upon which they appear in that edition.
As a result, it is appropriate to specify the size of the notice, by reference to the proportion of the virtual page which it is to occupy. Having regard to the page layout of the Manly Daily Digital Edition and the material required to be published, it is appropriate to specify that the notice be one which occupies one-quarter of a page and that it appear on an odd-numbered page within the first 13 pages of the edition within which it appears.
However, the conventional order that a copy of the page upon which the notice appears is required to be provided to the Prosecutor can no longer have any validity. The appropriate replacement order, therefore, is to require the Defendants to provide a screenshot in PDF, JPEG or PNG format to the Prosecutor on a USB thumb drive within 28 days of the publication of the Manly Daily Digital Edition within which the notice appears.
Such provision of proof of publication enables the Prosecutor to be satisfied that that which I have ordered has occurred in each instance. Equally, if such proof is not provided to the Prosecutor, the options of fulfilment by the Prosecutor of the obligation and the recovery of the cost from the Company (as provided by s 250(4) and (5) of the POEO Act) would be available to the Prosecutor.

Afloat Magazine

Afloat Magazine is published both physically and digitally (with the digital edition being, it would appear, a perfect facsimile replica of the print edition). It is therefore appropriate to specify that the notice to be published in this magazine should be a one-quarter page advertisement. The Afloat Magazine edition available to be examined online show that it appears to be of approximately 50 pages. As a consequence, to ensure sufficient prominence for the notice, it should be ordered to be published on an odd-numbered page within the first 13 pages of that magazine. The Defendants are to be required to provide a copy of the published page to the Prosecutor within 28 days of the publication of the Afloat Magazine within which the notice appears.

No penalty moderation for the costs of publication

Finally, for completeness on this issue, I observe that I recently addressed, in Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 (Budvalt), at [189] and [190], the submission that the costs of such publication should, in some fashion, moderate the quantum of the penalties that would otherwise be appropriate.
The power in the Water Management Act 2000 is, as in s 250(1)(a) of the POEO Act, one which permits the Court to make additional orders. In this respect, it is consistent with similar powers in other environmentally protective statutory regimes. I am unaware of any authority for any proposition that any such penalty moderation might be appropriate. Here, as in Budvalt, I reject the proposition.

Orders

In matter No 344508 of 2018:

The Defendant, East Coast Wharf Constructions Pty Ltd, is convicted of an offence against s 143(1) of the Protection of the Environment Operations Act 1997 in that the Defendant transported waste to a place that could not lawfully be used as a waste facility for that waste;

The Defendant is fined the sum of $30,000; and

The Defendant is ordered to pay the Prosecutor’s costs as agreed or assessed.

In matter No 344550 of 2018:

The Defendant, East Coast Wharf Constructions Pty Ltd, is convicted of an offence against s 144(1) of the Protection of the Environment Operations Act 1997 in that, being the occupier of a place, the Defendant used that place as a waste facility without lawful authority;

The Defendant is fined the sum of $75,000; and

The Defendant is ordered to pay the Prosecutor’s costs as agreed or assessed.

In matter No 344557 of 2018:

The Defendant, Benjamin Peter King, is convicted, by virtue of s 169(1) of the Protection of the Environment Operations Act 1997, of an offence against s 143(1) of that Act in that the Defendant transported waste to a place that could not lawfully be used as a waste facility for that waste;

The Defendant is fined the sum of $8,000; and

The Defendant is ordered to pay the Prosecutor’s costs as agreed or assessed.

In matter No 344556 of 2018:

The Defendant, Benjamin Peter King, is convicted, by virtue of s 169(1) of the Protection of the Environment Operations Act 1997, of an offence against s 144(1) of that Act in that, being the occupier of a place, the Defendant used that place as a waste facility without lawful authority;

The Defendant is fined the sum of $20,000; and

The Defendant is ordered to pay the Prosecutor’s costs as agreed or assessed.

In all matters, the Defendants, East Coast Wharf Constructions Pty Ltd and Benjamin Peter King, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, must cause a notice in the form of Annexure C, at their expense:

To be placed in the next print edition of Afloat Magazine within the first 13 pages, on an odd-numbered page, at a minimum one-quarter page size; and

To be placed within 28 days of the date of this order in the Manly Daily Digital Edition, within the first 13 pages, on an odd-numbered page, at a minimum one-quarter page size; and

Within seven (7) days of the date of publication of the notice referred to in (1) above, the Defendants must provide to the Prosecutor a complete copy of the page of Afloat Magazine in which that notice appears; and

Within seven (7) days of the date of publication of the notice referred to in (2) above, the Defendants must provide to the Prosecutor a USB thumb drive containing an image, in PDF, JPEG or PNG format, of the page of the Manly Daily Digital Edition in which that notice appears.

**********

Annexure A

Annexure B

Annexure C

Conviction of East Coast Wharf Constructions Pty Ltd (ACN 113 385 443) and Benjamin Peter King for Environmental Offences

East Coast Wharf Constructions Pty Ltd (the Company) and Mr Benjamin King have each been convicted by the Land and Environment Court of NSW of two waste-related offences. The offences were breaches of the Protection of the Environment Operations Act 1997. Mr King was, and is currently, the sole shareholder, director and secretary of the Company. In these capacities, Mr King has what is known as “special executive liability” - meaning he is also liable for offences committed by the Company.

The first offences arose from the Company transporting sections of a marina it demolished at Berowra to the Company’s commercial mooring located in Pittwater to the west of Scotland Island. This constituted the offence of transporting waste to a location that could not be used as a waste facility for that waste.

The second offences arose from the Company using its commercial mooring as a location to store the demolished marina materials pending further processing and disposal. This constituted the offence of using its commercial mooring as a waste facility without lawful authority to do so. The Court found, amongst other things, that three marina pontoon segments from those demolished from the Berowra Marina that had sunk in the marine environment of Pittwater caused actual harm to the environment and were likely to cause harm to the environment.

The prosecutions were commenced by Transport for NSW following an investigation conducted by its NSW Maritime Branch.

On 1 September 2020, the Company and Mr King pleaded guilty to these offences. On 16 October 2020, the Land and Environment Court convicted the Company and Mr King of the offences to which they had pleaded guilty.

The Company and Mr King were ordered to pay a combined penalty of $133,000 and to pay the Prosecutor's costs of the proceedings. In addition, they were also ordered to pay for the cost of publishing this notice.

Amendments

16 October 2020 - References to 'Transcript 24 September 2020' altered to read 'Transcript 23 September 2020). The date on the transcript, when compiling judgment shown as Wednesday 24 September 2020, whilst the footer referred to 23/9/20.

Amended pursuant to the Slip Rule on 16 October 2020.

19 October 2020 - Front cover of judgment amended to read Class 5 rather than Class 4, pursuant to Slip Rule on 19 October 2020.

Decision last updated: 19 October 2020

[2020] NSWLEC 112

16 October 2020

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Regulatory Compliance

Administrative Penalties

Consideration of Accused's Means

Medium Neutral Citation:	Transport for NSW v East Coast Wharf Constructions Pty Ltd; Transport for NSW v King [2020] NSWLEC 112
Hearing dates:	1 and 23 September 2020
Date of orders:	16 October 2020
Decision date:	16 October 2020
Jurisdiction:	Class 5
Before:	Moore J
Decision:	See orders at [296] to [300]
Catchwords:	PROSECUTION - prosecutions commenced by three Summonses against each of a corporate and an individual defendant - individual Defendant prosecuted under special executive liability provision of the Protection of the Environment Operations Act 1997 for the offending conduct of the corporate Defendant - “not guilty” pleas entered by each Defendant to each charge - Prosecutor agrees not to pursue Summons alleging Tier 1 offence by each Defendant - each Defendant then pleads guilty to the two remaining Tier 2 charges laid against that Defendant - sentencing hearing held PENALTIES - corporate Defendant to be convicted -guilty plea entered to two remaining charges - need to provide for both specific and general deterrence - indicative starting sentences of $40,000 and $90,000 - plea of guilty not entered at earliest opportunity but of more than minor utilitarian value - discount of 10% on starting penalties - impact of imposition of order for payment of Prosecutor’s costs - consideration of totality and accumulation of penalties - total fine of $105,000 imposed PENALTIES - individual Defendant to be convicted -guilty plea entered to two remaining charges - need to provide for both specific and general deterrence - indicative starting sentence of $12,000 and $27,000 - discount of 10% for the guilty pleas - impact of imposition of order for payment of Prosecutor’s costs - consideration of totality and accumulation of penalties - total fines of $28,000 imposed PUBLICATION ORDER - Prosecutor seeks publication order - Prosecutor proposes publication in Afloat Magazine, Daily Telegraph and the Manly Daily publications - Defendants resist the making of any publication order - appropriate to make a publication order - notice to be published ordered in Plain English terms, terms differing from those sought by the Prosecutor - appropriate to order publication of notice in Afloat Magazine, and the Manly Daily but not in the Daily Telegraph - method of specification of effecting publication in newspaper now only published online - publication order expressly created by the Protection of the Environment Operations Act 1997 as being in addition to, and not in substitution for, any element of the appropriate penalty to be imposed on each Defendant - not appropriate to reduce the penalty imposed on each Defendant as a consequence of making a publication order
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3, 21A, 22 and 23 Criminal Procedure Act 1986, ss 257B and 257G Fines Act 1996, s 6 Protection of the Environment Operations Act 1997, ss 115(1), 143(1), 144(1), 250(1)(a) and Dictionary Protection of the Environment Operations (Waste) Regulation 2014
Cases Cited:	Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Caralis v Smyth (1988) 65 LGRA 303 Environment Protection Authority v Albiston [2020] NSWLEC 80 Environment Protection Authority v Alcobell Pty Ltd; EPA v Campbell [2015] NSWLEC 123 Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80; 235 LGERA 114 Environment Protection Authority v Edward Glider [2018] NSWLEC 119 Environment Protection Authority v Foxman Environmental Development Services; Environment Protection Authority v Botany Building Recyclers Pty Ltd; Environment Protection Authority v Foxman (No 2) [2016] NSWLEC 120 Environment Protection Authority v Hughes [2019] NSWLEC 108 Environment Protection Authority v Laison [2015] NSWLEC 89 Environment Protection Authority v Rands [2019] NSWLEC 23 Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 EPA v Barnes [2006] NSWCCA 246 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 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 Shoalhaven City Council v Knight [2019] NSWLEC 138 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54 Wollongong City Council v Eldridge [2017] NSWLEC 35
Texts Cited:	COVID-19 Pandemic Arrangements Policy
Category:	Sentence
Parties:	Transport for NSW (Prosecutor) East Coast Wharf Constructions Pty Ltd (Defendant in Matters 344508 and 344550 of 2018) Benjamin Peter King (Defendant in Matters 344556 and 344557 of 2018)
Representation:	Counsel: Mr E Muston SC/Ms B Anniwell, barrister (Prosecutor) Ms K Hawes, solicitor (Defendants) Solicitors: Norton Rose Fullbright (Prosecutor) Aquarius Lawyers (Defendants)
File Number(s):	344508, 344550, 344556 and 344557 of 2018
Publication restriction:	No