Warringah Council v ProjectCorp Australia Pty Ltd (ACN 100 424 440)

[2015] NSWLEC 141

Land and Environment Court

New South Wales

Medium Neutral Citation:	Warringah Council v ProjectCorp Australia Pty Ltd (ACN 100 424 440) [2015] NSWLEC 141
Hearing dates:	29 - 30 May 2013 and 15, 18 July 2013
Date of orders:	03 September 2015
Decision date:	03 September 2015
Jurisdiction:	Class 5
Before:	Craig J
Decision:	Proceedings 51226 of 2012: (1) The Defendant is convicted of the offence as charged. (2) The Defendant is fined the sum of $35,000. Proceedings 51227 of 2012: (3) The Defendant is convicted of the offence as charged. (4) The Defendant is fined the sum of $10,000. Both Proceedings: (5) Pursuant to s 248(1) of the Protection of the Environment Operations Act 1997, the Defendant is ordered to pay the Prosecutor’s investigation costs of $1,945.20. (6) The Defendant must pay the Prosecutor’s costs of both proceedings, such costs to be determined in accordance with s 257G of the Criminal Procedure Act 1986. (7) Exhibits may be returned.
Catchwords:	ENVIRONMENTAL OFFENCES – offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) – erosion and sediment controls not implemented as required by development consent – offence against s 120(1) of Protection of the Environment Operations Act 1997 (NSW) – pollution of waters – plea of guilty to each offence – sentencing principles – erosion and sediment control facilities inadequate – discharge of sediment-laden water the consequence of both offences – offence against s 125(1) undermines integrity of planning and development control system – reasonably foreseeable harm – conduct not reckless in committing pollution offence – failure to implement conditions of consent of low to medium objective seriousness – pollution offence of low objective seriousness – prior penalty infringement notices not an aggravating factor – no prior convictions – remorse and contrition – not appropriate to exercise discretion under s 10 of Crimes (Sentencing Procedure) Act 1999 (NSW) – principle of totality – fine – costs.
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Protection of the Environment Operations Act 1997 (NSW)
Cases Cited:	Attorney-General’s Application (No 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Blue Mountains City Council v Carlon [2008] NSWLEC 296 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; 162 LGERA 273 Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; 145 LGERA 189 Johnson v The Queen [2004] HCA 15; 78 ALJR 616 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mosman Church of England Preparatory School v Warringah Council [2009] NSWLEC 1190 Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 R v De Simoni [1981] HCA 31; 147 CLR 383 R v Holder; R v Johnston [1983] 3 NSWLR 245 R v Paris [2001] NSWCCA 83 R v Scott [2005] NSWCCA 152 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Van Nam Nguyen [2002] NSWCCA 183 State Pollution Control Commission v Hunt (1990) 72 LGRA 316 Thorneloe v Filipowski [2001] NSWCCA 213; 52 NSWLR 60 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
Category:	Principal judgment
Parties:	Warringah Council (Prosecutor) ProjectCorp Australia Pty Ltd (Defendant)
Representation:	Counsel: M Arch (Prosecutor) M C Fraser (Defendant)   Solicitors: Concordia Pacific (Prosecutor) Moray & Agnew Lawyers (Defendant)
File Number(s):	51226 of 2012, 51227 of 2012

Judgment

1. The Defendant, ProjectCorp Australia Pty Limited, is charged by summons that on 25 January 2012 it committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act). In substance, the offence alleged is that the Defendant carried out development on land other than in accordance with the conditions of development consent granted for that development. The Defendant has pleaded guilty to that offence.

2. By a further summons issued on the same date, the Defendant is charged that on 18 April 2012 it committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (the POEO Act) in that it polluted waters of an unnamed tributary to a creek known as Kierans Creek. The Defendant has also pleaded guilty to that offence.

3. Both offences were committed as a consequence of development being carried out by the Defendant on land at Terrey Hills in metropolitan Sydney. In that circumstance, both the Prosecutor and the Defendant have agreed that the proceedings be heard together for the purpose of determining the sentence that should be imposed.

The statutory offence provisions

4. At the time of commission of the first offence, s 125(1) of the EPA Act relevantly provided:

“(1)    Where any matter or thing is by or under this Act … forbidden to be done … and that matter or thing … if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.”

The penalty then fixed for such an offence was a penalty not exceeding 10,000 penalty units (s 126(1)), which equates to a maximum fine of $1,100,000 (s 17 Crimes (Sentencing Procedure) Act 1999 (NSW)).

5. The provisions of s 125 are engaged in the present case by operation of s 76A(1) of the EPA Act. The latter subsection relevantly provides:

“(1)   General

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

(a)   such a consent has been obtained and is in force, and

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

The development for which the Defendant was responsible was development that could only be carried out on the land to which the charge relates with development consent. Such a consent had been obtained but, as I have indicated, the gravamen of the charge is that the Defendant had not complied with the conditions of the consent in the events that occurred on 25 January 2012.

6. Section 120 of the POEO Act provides:

“120   Prohibition of pollution of waters

(1)   A person who pollutes any waters is guilty of an offence.

(2)   In this section:

pollute waters includes cause or permit any waters to be polluted.”

The maximum penalty for an offence against s 120(1) is, in the case of a corporation, a penalty not exceeding $1,000,000: s 123(a).

Background

7. As will become apparent, not all facts relevant to the sentencing task have been agreed between the parties. However, those facts that are central to the commission of the offences are agreed and recorded in a Statement of Agreed Facts, tendered as Exhibit A. Those matters that I am about to record by way of background to the commission of the offences are taken from that Exhibit.

The site of the offences and its environs

8. The land on or from which the two offences are said to have occurred is Lot 139 in DP 752017 and known as 139 Tooronga Road Terrey Hills NSW (the Site). The Site has an area of 2.82 hectares. It is a corner lot bounded on the north by Tooronga Road and on the west by Kallaroo Road. On the east, the Site is bounded by a closed road that extends to the south forming an intersection with Cooyong Road. To the south, the Site is bounded by a property known as 58 Cooyong Road. The southerly extension of the closed road also forms the eastern boundary of the latter property.

9. To the immediate east of the closed road bounding the Site is the property known as 47 Tooronga Road. The southern boundary of the latter property is formed by the northern boundary of the property known as 56 Cooyong Road which, as its address suggests, has a frontage to Cooyong Road.

10. The landfall across the Site is generally from the northwest to the southeast. Prior to development of the Site in the manner later described, there was a pond or dam located in its south-eastern corner.

11. The unnamed tributary to Kierans Creek is located generally along the eastern and south-eastern boundaries of the property at 47 Tooronga Road, before passing along the eastern boundary of the property at 56 Cooyong Road. Water in this unnamed creek flows generally from the north or north-east in a southerly direction.

12. From the property known as 56 Cooyong Road, the tributary enters a culvert on the northern side of that road, passes under the road and then continues to flow in a channel through lands to the south and southwest before entering the Ku-ring-gai Chase National Park where it joins the main branch of Kierans Creek. Kierans Creek flows into Cowan Creek within the boundaries of the National Park.

The 2009 development consent

13. The unnamed tributary of Kierans Creek is classified as an “upland river” under the “Australia and New Zealand Guidelines for Fresh and Marine Water Quality 2000” (the ANZECC guidelines).

14. On 12 June 2009, this Court granted development consent for the Site (Mosman Church of England Preparatory School v Warringah Council [2009] NSWLEC 1190). The consent then granted was for recreation facilities associated with the Mosman Church of England Preparatory School (the Preparatory School). That development was more particularly described as being:

“…the demolition of an existing dwelling; conversion of an existing dwelling for administration purposes and a caretakers dwelling; construction of a facilities hall; construction of a multi-sports oval and tennis/basketball courts; dam refurbishment; car parking facilities; and an on site effluent disposal system”.

15. The consent granted by the Court was subject to a deferred commencement condition. That condition was expressed in the following terms:

“1.   Stormwater Drainage Design (Deferred Commencement Condition)

(a)   Plans indicating all engineering details relevant to the site regarding the collection and disposal of stormwater from the site, buildings, and adjacent areas including on-site detention, shall be submitted to Council for written approval. Stormwater shall be conveyed by gravity from the site via a level spreader below the existing dam to the unconstructed crown road. All proposals shall be in accordance with Warringah Council’s Stormwater Drainage Design Guidelines for Minor Developments.

(b)   Evidence required to satisfy these conditions must be submitted to Council within 12 (twelve) months of the date of this consent, or the consent will lapse in accordance with Section 95 of the Environmental Planning and Assessment Regulation.”

16. Condition 34 of the Development Consent granted by the Court must also be noticed. It was not expressed as a deferred consent condition. It appears under a heading directed to conditions “that must be complied with during demolition and building work”. The condition provides:

“34.   Construction Management

Construction work is to be carried out in accordance with submitted Construction Management Plan by Connell Wagner dated 19 December 2007 subject to the conditions of this consent.”

17. Appended to the Construction Management Plan referred to in Condition 34 was a Sediment and Erosion Control Plan last amended on 6 November 2007, prepared by Martens and Associates Pty Limited (the Martens Plan). That Plan comprised a single sheet. It showed diagrammatically the location of sediment fences on part of each of the western, eastern and southern boundaries as well as the location of banks of staked straw bales, including a continuous bank across the south-eastern corner of the Site above the dam that I have earlier identified. Also appearing on the Martens Plan were diagrams illustrating the specification for construction of the sediment fences and staked straw bales. The location of a stockpile area was indicated, shown to be surrounded by sediment fencing.

18. On 10 March 2010 the Council wrote to the Preparatory School stating that its development application “has now been determined”. Attached to the letter was a Notice of Determination with the conditions imposed by the Court attached. Although the letter did not say so in terms, it is apparent that the deferred commencement condition had been satisfied. Reference is made in the Council’s letter to the need for a construction certificate and a schedule of fees required to be paid to the Council is given.

Work undertaken on the Site

19. The Defendant is a company that had been engaged in commercial construction activities for a period exceeding 10 years prior to the commission of the present offences. Projects in which the company has been involved have included construction works for schools, community centre buildings, sporting fields as well as industrial and commercial building projects.

20. On 2 November 2010 the Defendant was invited to tender for the works on the Site for which development consent had been granted. For the purpose of preparing its tender, the Defendant was provided with a number of documents, including the conditions of development consent that were attached to the Council’s letter to the Preparatory School of 10 March 2010. It will be necessary to refer to further documents that were provided to the Defendant to enable preparation of its tender.

21. Ultimately, the Defendant’s tender was successful. In May 2011, it was awarded the contract to carry out the works authorised by the Development Consent. Those works included the earthworks component of the Project, the demolition of existing structures as well as the construction of new facilities.

22. On 20 June 2011 a construction certificate for the development was issued by a private certifier. That certificate was issued in response to an application made directly to the certifier by the Preparatory School, with no involvement of the Defendant in the preparation or submission of documents to the certifier for the purpose of having that certificate issued. Along with the construction certificate, the Defendant received from the Preparatory School documents marked “for construction”, including plans. Included among the plans so marked were sediment and erosion control plans that differed from the Martens Plan.

23. The Defendant commenced work on the Site on 16 July 2011. The first phase of the work involved clearing and then carrying out earthworks. It is the state of the Site as cleared, with a substantial area of disturbed soil on the surface, that gave rise to the commission of each offence. However, before turning to the facts directed to the commission of those offences, it is necessary to record, by way of background, further evidence directed to the sediment control measures that were imposed by the conditions of development consent.

Erosion and sediment control plans

24. The terms of Condition 34 have already been recorded. It is the failure of the Defendant to have complied with the Martens Plan, called up by that Condition, that has been identified by the Prosecutor as the particular condition of the consent with which the Defendant failed to comply, giving rise to the offence against s 125(1) of the EPA Act.

25. While Condition 34 addresses “construction work”, Condition 11 of the consent is expressed to address sediment control. It is one of a number of conditions that appear under the general heading of conditions that are to be satisfied “prior to the issue of the construction certificate”. Condition 11 is in the following terms:

“11.   Sediment Control

Where construction or excavation activity requires the disturbance of the soil surface and existing vegetation, details including plans and specifications shall be submitted to Council/Accredited Certifier accompanying the Construction Certificate, which provide adequate measures for erosion and sediment control. As a minimum, control techniques are to be in accordance with Soils and Construction Manual Volume 1 – Managing Urban Stormwater, or a suitable and effective alternative method. The Control Plan shall incorporate and disclose:

“(a)   All details of drainage to protect and drain the site during the construction processes;

(b)   All sediment control devices, barriers and the like;

(c)   Sedimentation tanks, ponds or the like;

(d)   Covering materials and methods;

(e)   A schedule and programme of the sequence of the sediment and erosion control works or devices to be installed and maintained.

Details from an appropriately qualified person showing that these design requirements have been met shall be submitted with the Construction Certificate and approved by the Council/Accredited Certifier prior to issuing of the Construction Certificate.”

26. In order to comply with the requirements of Condition 11, the Preparatory School retained Cardno Limited (Cardno), to prepare an erosion and sediment control plan. These plans were first prepared in August 2010. Revision A of those plans was later issued as plans “for construction”. They were the plans provided to the Defendant with the invitation to tender for the Preparatory School project. They were also included among the documents identified in the Construction Certificate issued by the private certifier and provided to the Defendant in June 2011. Along with the other plans then provided, they were plans stamped by the private certifier as being the plans to which the Construction Certificate related.

27. The erosion and sediment control plans prepared by Cardno comprised three sheets (the Cardno Plan). These sheets appeared to show more detail than had been shown on the Martens Plan and included site contours at 100mm intervals. The first two sheets identified the location of various sediment control structures, including the location of silt fences and staked straw bale barriers. The location of the existing dam in the south-eastern corner of the Site was shown with the words “utilise as sediment basin during construction” directed to that dam. Silt fencing is shown as being required along both the eastern and southern boundaries of the Site.

28. The third sheet of the Cardno Plan contained “erosion and sediment control notes”, being text that was descriptive of steps to be taken relevant to erosion and sediment control. The third sheet also contained drawings indicating the specification for some of the measures that the earlier two drawings had indicated, including the specification for the silt fences that were required to be installed.

29. The Cardno Plan was further revised in early July 2011 when Revision B of the Plans was issued by Cardno. That revision made no change to the Revision A plans that is of any present consequence. The later plans were also issued “for construction”.

30. Having been provided with the Cardno Plan as part of the construction certificate drawings, the Defendant considered that it was bound to undertake erosion and sediment control measures conformably with that Plan. For reasons later identified, the Defendant acknowledges that it had not completed all erosion and sediment control works identified in the Cardno Plan at the time of committing the offence against s 125 of the EPA Act. Thus, it does not resile from its plea of guilty to the offence under that section, albeit the breach acknowledged by it is failure to comply with the Cardno Plan rather than the Martens Plan. Further, the Defendant accepts that the requirements of both the Cardno Plan and the Martens Plan were similar in specifying the need to have silt fencing in the south-eastern corner of the Site which, as will be seen, had not been provided in the manner required by either Plan at the time of the offence against the EPA Act.

Site observations in August 2011

31. On 12 August 2011, the Site was inspected by Nick Ives, the manager of the Council’s Environmental Health and Protection Compliance section. On arriving at the Site he noted that substantial earthworks had been carried out, the vegetative cover cleared and most of the land surface was comprised of disturbed soil. The Statement of Agreed Facts records that Mr Ives then made the following further observations:

1. soil stockpiles had been established at various locations without any sediment fencing placed around them;

2. no sediment fencing, straw bales or other erosion or sediment control measures had been installed along the eastern boundary of the Site;

3. the southern wall of the existing dam located near the south-eastern corner of the Site had been eroded, such that the dam was not capable of retaining water;

4. the only apparent erosion and sediment control measure on the Site was a small pond measuring approximately 2m x 2m and which was surrounded by staked straw bales;

5. the water that had collected in that pond was brown and sediment-laden;

6. water entering that pond was first travelling overland from the breached wall of the dam and flowing across exposed and heavily eroded soils before reaching that pond;

7. as the small pond filled with this sediment-laden water, water flowed beneath the straw bales surrounding it, passing into a drainage channel that ran downslope in the direction of Cooyong Road.

32. Having made those observations on the Site, Mr Ives walked to Cooyong Road. There he observed brown sediment-laden water that appeared to have originated from the Site flowing in a drainage channel alongside the western boundary of the property at 56 Cooyong Road. That water was then observed to run east along the edge of Cooyong Road for a distance of about 70m, from where it flowed into the unnamed tributary of Kierans Creek. Upstream of the point where the sediment-laden water entered the tributary, waters were observed to be clear.

33. Prior to leaving the Site on that day, Mr Ives spoke to the then Site Manager, Sam Orlando. Mr Ives told Mr Orlando that the erosion and sediment controls on the Site were completely inadequate and that additional controls were needed to be installed immediately.

34. Upon returning to his office on 12 August, Mr Ives prepared and issued a Clean-Up Notice directed to the Defendant pursuant to s 91 of the POEO Act. That same day, Mr Ives sent an email to Mick Jukic, another employee of the Defendant. In that email, Mr Ives indicated that a Clean-Up Notice had been issued and that it had been faxed to the Defendant’s office. Compliance with the Notice was required by 15 August 2011. Mr Jukic was also advised by that email that the Prosecutor would be issuing a Penalty Notice consequent upon the observations made of the Site that day.

35. Attached to the email sent by Mr Ives to Mr Jukic was a copy of the Construction Management Plan prepared by Connell Wagner together with the Martens Plan and a “Concept Stormwater Management Strategy” also prepared by Martens.

36. Mr Jukic responded to that email on 15 August 2011. He stated that hay bales were presently installed at the south-eastern corner of the Site “collecting silt run off from our Lot 139 Tooronga Road Terrey Hills”. He further indicated that additional silt fencing had been installed along the southern boundary “to control silt from leaving the site”. In his response, Mr Jukic stated that he was attaching “the Erosion Control Plan”. The plan that he attached were the three drawings that comprised the Cardno Plan, Revision A, being the plans that Mr Ives acknowledged were the plans submitted to the private certifier for the purpose of obtaining the Construction Certificate.

37. There is no evidence of any response from Mr Ives or any other officer from the Prosecutor, stating that the Cardno Plan was not the erosion and sediment control plan that the Defendant was required to observe.

38. Mr Ives returned to the Site on 17 August 2011. He then made the following observations:

1. the dam near the south-eastern corner of the Site was being filled with used bricks;

2. filter fabric fencing or silt fencing had been installed below a steeply sloped embankment of exposed soil located at the southern end of the Site, with the filter fabric being held in place by a series of wooden stakes. Soil apparently washed from higher levels of the Site was in contact with that filter fabric “at a number of locations”.

39. On 18 August 2011 Mr Ives issued two Penalty Infringement Notices to the Defendant. The first was for an offence against s 120 of the POEO Act for causing water pollution on 12 August. The second was for a failure to comply with the Clean-Up Notice issued on 12 August, requiring the Defendant to take measures to ensure that vehicles leaving the Site “did not track mud and sediment onto public roads”. The penalty identified in each Notice was $1500. Those penalties were subsequently paid by the Defendant.

40. On 19 August 2011 Mr Ives sent emails to each of Tim Bigeni, the managing director of the Defendant, and Messrs Jukic and Orlando. Attached to the email were photographs of the Site taken by Mr Ives during the course of his inspection on 17 August. A caption attached to the photograph of the sediment fence at the southern end of the Site read “sediment control fence not installed in accordance with Construction Management Plan”. A caption attached to a photograph of the existing dam near the south-eastern corner of the Site read “dam to be used as a sediment basin in accordance with Construction Management Plan has been emptied and is being filled with material such as bricks”.

41. Mr Bigeni replied by email on 26 August 2011 in which he stated that amended soil and water management plans were attached. He continued:

“The plan is currently being utilised and will remain in place until such time as the new dam is reconstructed in its permanent position.”

42. The revised sediment control plan to which Mr Bigeni referred was a further plan prepared by Cardno. It appears to be a revision of one of the drawings that comprise the Cardno Plan, namely that directed to sediment control measures required to be undertaken along the eastern and southern sections of the Site. The revisions include:

1. a temporary sediment basin approximately 5m x 5m and 1.2m deep located adjacent to the eastern boundary, approximately 50m north of the south-eastern corner of the Site, with a further notation indicating the discharge point from that basin is “protected and bound by sand and metal filtration bags”;

2. an earth mound barrier is indicated within and parallel to the eastern boundary, from the temporary basin through to the existing dam with further earth mound barriers across the south eastern corner of the Site and then running parallel to the southern boundary, intended to “direct water flow to [the] temporary sediment basin”;

3. a notation on the Plan and pointing to the existing dam states “dam to be reconstructed during construction and utilised as temporary sediment basin”.

The revised Plan maintained the requirement reflected in an earlier version that silt fencing be erected along the eastern and southern boundaries of the Site.

43. Once again, there is no evidence to suggest that Mr Bigeni was incorrect in seeking to rely upon the erosion and sediment control measures identified in the Cardno Plan, as revised. Nothing done or said on behalf of the Prosecutor sought to disabuse Mr Bigeni from relying upon that revised sediment control plan.

Offence against the EPA Act: 25 January 2012

44. Although work had commenced in July 2011, progress was slowed by inclement weather. In particular, from November 2011, regular periods of heavy rain delayed completion of bulk earthworks necessary to prepare the Site for its intended use by the Preparatory School.

45. Nonetheless, by 25 January 2012, earthworks on the Site had progressed. As these earthworks involved significant cut and fill in order to level the Site, soil and rock had been moved towards the southern boundary of the Site. This movement of material resulted in the creation of an embankment running generally parallel to its southern boundary. The toe of the embankment was within the Site but close to its southern boundary. Given the natural fall of the Site from north-west to south-east, the embankment became steeper and higher as it ran towards the south-eastern corner.

46. The face of the embankment comprised earth and rock which, on 25 January 2012, had not been stabilised by vegetation or any other measure. In addition, the surface of the Site north of the embankment remained in a disturbed state, cleared of stabilising vegetation.

47. From the morning of 25 January 2012 heavy rain fell on and in the vicinity of the Site. During the course of the day, the Site was visited by Rangers Jeffrey Hudson and Michelle Peddle as well as Ryan Cole, a development manager employed by the Prosecutor.

48. Upon arriving at the Site, Mr Hudson observed that although heavy rain was and had been falling, surface water flowing along the boundaries of Tooronga Road in the vicinity of the Site appeared to be clear with no sediments apparent. As will be seen, this is in contrast to observations made both on and downstream of the Site.

49. On entering the Site, Mr Hudson observed its condition to be as I have just described it, namely a site cleared of vegetation with almost the entire surface comprised of exposed soil and rock. He also observed a number of soil stockpiles on the Site, none of which had sediment fencing placed around them.

50. A partially constructed on-site detention structure was located near the eastern boundary of the Site. This structure appeared to comprise a number of concrete blocks. Brown, sediment-laden water had accumulated in a pool at the northern end of this structure. This water was then entering a drainage channel and flowing to the east. There were no measures in place, such as straw bales, to remove sediment from this water. After leaving the temporary structure, this water ran overland for approximately 10m and then flowed into the temporary sediment basin. Water collected in this basin then ran into a further drainage channel where it flowed to the east. There was no filtering device such as straw bales on this channel intended to remove sediment. However, if the Martens Plan is that which the Defendant was required to observe, it did not show any straw bales to be located either east or south of the temporary basin.

51. The Rangers also made observations in the vicinity of the southerly embankment that I have earlier described. Sediment-laden water originating from the northern area of the Site was running down the face of the embankment and then flowing in an easterly direction in a drainage channel that was located at the toe of the embankment. At a number of locations across the face of the embankment, water that was flowing down the face had scoured erosion gullies, carrying sediment with the water. At least two of these gullies were between 1m and 2m deep. Apart from a small section of sediment fencing located in the south-eastern corner of the Site, there was no sediment fencing in place either along the top or along the toe of this embankment.

52. In the south-eastern corner of the Site some lengths of geotextile filter fabric were observed, together with a wooden stake, apparently used to support this fabric. Both the stake and the fabric were lying on the ground. Sediment-laden water was observed to be flowing across this filter fabric.

53. In this same area a short section of geotextile filter fabric fencing remained in place. However, sediment that had been washed from uphill on the Site had almost covered this section of fencing. Water from uphill was flowing around and over this fencing.

54. Several straw bales had been placed on the southern side of the drainage channel that ran along the toe of the embankment. Water passed beyond these straw bales and continued flowing to the east.

55. The Martens Plan had shown geotextile silt fencing running down the eastern boundary from the north-eastern corner for about two thirds of the length of that boundary. From that point the silt fencing was shown as running diagonally across the Site, above the existing dam, and extending across to the southern boundary. From that point silt fencing was also shown as extending westerly to the western boundary of the Site. In addition to the silt fencing running diagonally across the south-eastern corner of the Site and above the existing dam was a continuous row of hay bales. Neither that silt fencing nor the hay bales were in place on 25 January 2012.

56. As will be recalled, the Cardno Plan called for a small temporary sediment basin north of the south-eastern corner with the discharge point from that dam “protected and bound by sand and metal filtration bags”. While the partially constructed detention structure comprised of concrete blocks to which I have earlier referred may have been the intended sediment basin, no observation was made by the Rangers of the discharge point from that basin being “protected and bound by sand and metal filtration bags” as the Cardno Plan required.

57. Perhaps more significantly, the Cardno Plan had required geofabric silt fencing to be installed along the eastern boundary to the south-eastern corner where it joined with a further siltation fence required to be constructed along the entire southern boundary of the Site. Neither fence was in place on 25 January 2012.

58. I have already recorded some of the observations of water flowing across the Site in both an easterly and south easterly direction. Sediment-laden water that flowed from the small temporary sediment basin was observed to discharge onto the closed road to the east of the Site from where it ran in a southerly direction towards Cooyong Road. Water flowing along the drainage channel at the base of the embankment, was observed to flow easterly from the Site, across the closed road to the western boundary of the property at 58 Cooyong Road where it then flowed south to that Road. On reaching Cooyong Road the sediment-laden water ran along the northern side of that Road until entering a culvert over which access is provided to 56 Cooyong Road and from which it flowed into the unnamed tributary of Kierans Creek. While the water flowing along the northern side of Cooyong Road from the closed road was turbid or sediment-laden as it was when it flowed from the Site, stormwater flowing along the southern side of Cooyong Road appeared to be clear.

59. Shortly after arriving at the Site, Ms Peddle telephoned the Defendant’s then Site Manager, Sam Orlando, and after introducing herself, stated that a “serious pollution incident is occurring as a lot of sediment laden water is running off the site”. She requested that he attend the Site. He agreed to do so. When Mr Orlando arrived at the Site, Ms Peddle issued “an instruction to install temporary sediment control measures in order to prevent further pollution from occurring”. Mr Orlando responded by indicating that as all workers had gone from the Site and as the following day was a public holiday, he would not be able to attend to that “instruction” until “first thing Friday” (2 days hence). When reminded that the pollution occurring was “a significant pollution event”, Mr Orlando responded by stating:

“It was the rain, it’s been too heavy.”

60. After going to the Defendant’s site office for a short time, Mr Orlando returned to Ms Peddle and said:

“I have spoken with our contractor. They will install sediment controls.”

61. I should indicate that detailed evidence was led by the Prosecutor, including a video recorded on a mobile telephone, showing the extent of water flow on and across the Site on 25 January, as well as sediment-laden water running from the Site in the manner that I have endeavoured to describe. While that evidence is relevant when considering the consequence of the breach, I do not overlook the fact that the offence that occurred on 25 January 2012 to which the Defendant has pleaded guilty is an offence against s 125(1) of the EPA Act, directed to its failure to install sediment and erosion control measures as required by a condition of the Development Consent. The Defendant is not charged with having committed a pollution offence on that date. Those are matters to which I will make further reference later in this judgment.

Re-inspection of the Site on 30 January 2012

62. Ms Peddle and Mr Hudson returned to the Site on 30 January 2012. Their purpose in so doing was to ascertain the steps, if any, taken by the Defendant to carry out sediment control measures at the Site. The observations then made are those recorded in the Statement of Agreed Facts.

63. The small temporary on-site detention structure located north of the south-eastern corner of the Site and in close proximity to the eastern boundary still contained a pool of sediment-laden water. However, straw bales had been installed at the outlet from this pond at the point where the channel from the pond ran towards the eastern boundary. The bales were held in place by metal star pickets.

64. A geotextile fabric sediment fence, supported by star pickets, was being installed below the toe of the southern embankment for almost the entire length of the southern boundary. At the south-eastern corner of the Site the filter fabric was, at that time, supported by wooden stakes.

65. Below the toe of the southern embankment, a series of straw bales had been placed directly across the channel as it ran towards the south-eastern corner. At the time of inspection, these straw bales had not yet been staked in place.

66. Following that inspection, Ms Peddle issued a further Clean-Up Notice under s 91 of the POEO Act. That Notice was in part directed to the perceived content of some of the stockpiles on Site, a matter not raised for consideration in the present proceedings. However, the Notice also related to perceived inadequacies in sediment control measures. Relevantly, the Notice stated:

“1.   Install, repair and maintain adequate erosion and sediment controls on the site at all times to prevent sediment leaving the site and entering any stormwater system and/or waterway.

2.   Stockpiles must be stored on the site in manner [sic] where they are protected from sediment being washed or blown away.

…

4.   Discharge of water from the construction site at the subject premises must not cause water pollution as defined under the Protection of the Environment Operations Act 1997.

…

7.   Provide certification to Council from a suitably qualified person certifying that the sediment and erosion controls for the subject premises comply with the Soil and Water Management Plan prepared by Cardno Limited: number 600281-172A(Revised 26/8/11). Where additional sediment and erosion controls are required to prevent pollution, amendment [sic] to be made to the plan and submitted to Council.”

67. It is apparent from Paragraph 7 of that Notice that, at the time, the Prosecutor considered that the sediment and erosion control measures required to be observed by the Defendant were those reflected in the Cardno Plan rather than the Martens Plan.

68. I will address in due course the evidence led by the Defendant as to the measures that it said were taken following the events of 25 January 2012.

Offence against s 120 of the POEO Act: 18 April 2012

69. Heavy rain had fallen on and in the vicinity of the Site on the evening of 17 April 2012. That heavy rain continued throughout the day of 18 April.

70. At about 3.00pm on 18 April three employees of the Prosecutor arrived at the Site. They were Environmental Health Officers James Montgomery and Anita Smojver and the Co-Ordinator of the Prosecutor’s Development Compliance Team, Michael Davies. They remained onsite until about 4.30pm that day.

71. The Prosecutor’s employees approached the Site from the property at 58  Cooyong Road, that is, the property located immediately to the south of the Site. As they moved towards the southern boundary of the Site they observed water from the northern section of the Site flowing down the face of the embankment at the Site’s southern end. They observed that water to be turbid and brown in colour.

69. At the time of the inspection a geotextile silt fence, erected using metal star pickets, was in place extending along the southern face of the embankment. It was located close to the toe of that embankment. While the geotextile fabric extended to the soil surface, no portion of that fabric was observed to be anchored below the ground surface. Both the Martens Plan and the Cardno Plan had illustrated the installation of geofabric fencing with the geofabric extending below the soil surface, returning under the soil in the direction of backfill.

70. The sediment-laden water that was flowing down the slope was observed to be passing both through and beneath the geotextile fabric fixed to the star pickets. That water continued to flow down the slope until it reached a drainage channel at the toe of the slope from where it ran in an easterly direction, generally towards the south-eastern corner of the Site. Water in that channel is described as being brown in colour and turbid in appearance.

71. Water samples were taken from two locations on the southern embankment, each of these locations being above the sediment fence. Laboratory analysis of the first water sample revealed a concentration of total suspended solids (TSS) of 1900 mg/L and a turbidity level of 1700 Nephelometric Turbidity Units (NTU). Laboratory analysis of the second sample revealed a TSS level of 1900 mg/L and a turbidity level of 1800 NTU.

72. A sample of water flowing east in the channel at the toe of the embankment but still within the Site was also analysed. That sample, known as Sample 3, showed a TSS level of 1500 mg/L and a turbidity level of 980 NTU.

73. The inspecting officers from the Prosecutor walked from the point where Sample 3 was taken towards the south-eastern corner of the Site. There they observed not only the silt fencing that extended to and around the south-eastern corner, but also a second section of geotextile fencing that had been placed slightly higher up the slope of the southern embankment. Once again, this additional section of silt fencing had been installed with the geotextile fabric taken to ground level but not anchored beneath the surface. This had the consequence that water flowing down the slope to the south or south-east ran beneath the fencing and into the drainage channel that I have earlier described.

74. Further to the east along the southern boundary, a series of straw bales had been placed in a transverse direction across the drainage channel. The straw bales were held in place by metal stakes with lengths of geotextile fabric placed on the western or upstream side of some of these straw bales. However, such was the flow of water into the channel that it was passing both beneath and around these bales towards the south-eastern corner of the Site. Some sections of the geotextile fabric, initially attached to straw bales, had been detached by the flow of water and so were ineffective to filter the sediment suspended in the water flowing to the south-east.

75. Observations made by the inspecting officers outside the south-eastern corner of the Site revealed the following as to the paths taken by the brown sediment-laden water from the Site:

1. some of that water flowed across the closed road to the western boundary of 56 Cooyong Road and then in a further channel on the western side of the latter property in the direction of Cooyong Road;

2. that water also flowed in a channel adjacent to the eastern boundary of the Site in the direction of Cooyong Road;

3. some of that water moved as a sheet flow across and through the property known as 47 Tooronga Road.

79. The channel adjacent to the eastern boundary of the Site appeared to originate some 40m to 50m to the north of the south-eastern corner where observations were made at two locations of sediment-laden water flowing beneath a boundary fence on the Site and into the channel. At a point where water was seen to flow beneath the boundary fence and into this channel, approximately 40m north of the south-eastern corner, water Sample 4 was taken. Laboratory analysis of that sample indicated a TSS concentration of 4,900mg/L and a turbidity level of 4,800 NTU.

80. Closer to, but several metres to the north of the south-eastern corner, a further water sample, Sample 5, was taken. Laboratory analysis of that sample revealed a TSS concentration of 4,500mg/L and a turbidity level of 4,100 NTU.

81. Observations were also made of surface water on the property at 58 Cooyong Road, being the property located immediately to the south of the Site. That water was observed to be “clear” and appeared to be “uncontaminated”. Sample 6 was taken from surface water on that property. Laboratory analysis of Sample 6 indicated a TSS concentration of 31mg/L and a turbidity level of 30 NTU.

82. A further water sample, Sample 7, was collected from the drainage channel that ran adjacent to the western boundary of the property at 56 Cooyong Road, near to its intersection with that road. Laboratory analysis of that sample revealed a TSS concentration of 240mg/L and turbidity level of 210 NTU.

83. Sediment-laden water that was observed to have left the Site flowed in the channels that I have described to the northern side of Cooyong Road from where it ran along that side of the road in an easterly direction before passing into a culvert running beneath the driveway at 56 Cooyong Road and then discharging into the unnamed tributary to Kierans Creek. A further water sample was collected at a point on the northern side of Cooyong Road immediately before the water stream entered the culvert. This water sample was known as Sample 8. Laboratory analysis revealed a TSS concentration of 180mg/L and turbidity level of 200 NTU.

Further inspection on 1 May 2012

84. The Site was revisited by Mr Montgomery on 1 May 2012. On that day he observed that a new sedimentation basin had been excavated at the southern end of the Site. New diversion ditches or drains had been constructed that appeared to be designed to direct surface water runoff from areas of the Site into the new sedimentation basin.

85. Jute matting had also been placed along the entire length of the embankment at the southern end of the Site, the purpose of which appeared to be to control the erosion of soil and rock by water flowing over that area. Along that same area a number of plants in black plastic pots had been placed on top of the jute matting at intervals of about 3m. It was apparent that this had been done in preparation for planting within the area so as to assist in stabilising the embankment.

Additional evidence from the Prosecutor

86. In addition to tendering the Statement of Agreed Facts and documents additional to those appended to that Statement, the Prosecutor read portions of affidavits sworn by Ryan Cole, Jeffrey Hudson, James Montgomery and Jacqueline Grove. All were officers of the Prosecutor. With the exception of Ms Grove, the evidence that was read was substantially confirmatory of observations made at the time of events recorded in the Statement of Agreed Facts. Photographs additional to those appended to Exhibit A were tendered through them.

87. Mr Cole was responsible for the video recording of the Site on 25 January 2012, being the date of the offence against s 125(1) of the EPA Act. His video records the state of the Site on that day as is more fully described in Exhibit A. His video demonstrates the apparent lack of continuous fencing along the eastern and southern boundaries of the Site and the state of such sections of fencing that were in place at that time. He described a section of filter fencing in the south-eastern corner of the Site that appeared to him to have been flattened and moved to the south-east by the flow of water moving down and across the Site. His video recording confirms that there was a considerable flow of water across the Site and that the water leaving the Site was “cloudy” and “discoloured”. The only evidence of sediment fencing that he observed was at the south-eastern corner below the embankment, which, because of the damage to it, had been breached.

88. Mr Hudson was one of the rangers who attended the Site on 25 January 2012. He also observed a heavy flow of water across the Site and down the southern embankment which was being eroded by the flow of water. His observations as to the absence of silt fencing are the basis of statements more fully recorded in that regard in Exhibit A. To the extent that some silt fencing had been erected in the south-eastern corner of the Site, he stated that a section of that fence was substantially buried by the accumulation of soil and silt retained by it with the consequence that water was flowing around and over this section of fencing. Mr Hudson acknowledged that when he went to the Site, he believed he was investigating a pollution event. Although it was raining, he had not carried out any investigation in Kallaroo Road to determine the flow or quality of water from that road onto the Site.

89. James Montgomery was one of the officers of the Prosecutor who attended the Site on 18 April 2012. He acknowledged that there had been severe storms in the area both on and prior to that day and that in the course of his inspection, it was raining heavily. During his inspection, he took a number of photographs that were tendered (Exhibit H) and also made a video recording on his mobile telephone that became Exhibit G. Both the photographs and the video recording make obvious that not only was it raining heavily at the time but that both the Site and surrounding land appeared to be saturated, with pools of water obvious on flat ground and rapidly flowing water on sloping ground, not only on the Site but also on surrounding land and along Cooyong Road.

90. The focus of Mr Montgomery’s observations were of the Site itself and downstream of the Site. His observations are, once again, more fully reflected in Exhibit A and need not be repeated. He did not carry out any investigation of water entering the Site from its south-western corner where it intersected with Kallaroo Road, although he acknowledged that water flowed across the Site from that direction.

91. Both the observations recorded by Mr Montgomery and his photographic evidence confirms that straw bales, fixed in place with metal stakes, were apparent on the Site, as was silt fencing, with more than one row of that fencing around the south-eastern corner. He acknowledged in cross-examination that two rows or “layers” of that fencing were better than a single row in attempting to arrest silt in water flowing down the Site. He also observed that although the straw bales had been fixed in the manner that I have described, some were dislodged, apparently because of the force that the flow of water exerted.

92. In the course of inspecting both the Site and its environs on 18 April 2012, Mr Montgomery made observations of the flow of water in Cooyong Road, east of the closed road from which silty or turbid water had flowed from the Site. As he was photographing each of the points from which water samples were taken, he observed the point at which water on the northern side of Cooyong Road flowed into the culvert which fed that water into the unnamed tributary of Kierans Creek. At this point he acknowledged that there was a large volume of water both entering from Cooyong Road and also flowing in the upstream portion of the tributary.

93. In cross-examination, he accepted that water flowing in the tributary before entering the culvert appeared to have “about the same turbidity” as he observed in the water entering that culvert from Cooyong Road. While a water sample had been taken from the water flowing along Cooyong Road immediately before the water stream entered the culvert, earlier referred to as Sample 8, no sample had been taken from the unnamed tributary immediately upstream from the culvert. This had not been done because it was not safe to do so, having regard to the rain and flow of water in the tributary at that time.

94. Ms Grove is an environmental scientist employed by the Prosecutor. She did not visit the Site until 23 October 2012. The purpose of her evidence was to assess the environmental impact of the pollution event that had occurred on 18 April of that year. In doing so, she relied upon both the video and photographs taken by Mr Montgomery at that time as well as the laboratory results for the eight water samples that were taken and to which I have earlier referred.

95. It is convenient to address the evidence of Ms Grove when I consider the environmental impact of the offence against s 120 of the POEO Act.

Evidence from the Defendant

96. Tim Bigeni is the sole director of the Defendant. It is a company incorporated in 2002. Since that time, it has been involved in building and construction projects of the kind earlier identified at [19]. Many of those projects have involved earth moving and landscaping works. Mr Bigeni has tertiary qualifications in construction management and has been involved in the construction industry for over 20 years.

97. At the time at which the events resulting in charges against the company occurred, the major role undertaken by Mr Bigeni was that of estimating and tendering for projects. Once a tender was successful, the project was assigned to a project manager who, in turn, retained a particular site manager whose function was to supervise the day-to-day operations of the particular project. At that time, Mr Bigeni did not involve himself in the running of projects but rather consulted with the particular project manager “on an as required basis”. Project specific matters involving the client, consultants and statutory authorities were generally left to be addressed by the project manager and his team.

98. Mr Bigeni prepared the estimate upon which the Defendant based its tender for the Preparatory School project at the Site. For that purpose, he was provided with a copy of the Development Consent, the conditions of which were marked up to indicate who would be responsible for compliance with various conditions. Cardno was identified as being responsible for compliance with both the deferred commencement condition and Condition 11. Along with the Development Consent, the tender documentation also included a copy of the Construction Management Plan prepared by Connell Wagner dated 19 December 2007. Mr Bigeni noted that the single page Martens Plan dated November 2007 formed part of that Plan. He described the Martens Plan as a “basic drawing that sets out various sediment control measures in very limited detail”. The Plan did not contemplate the location of buildings to be constructed nor did it identify contours necessary to determine the likely flow of water across the Site and, according to his interpretation, isolated the dam in the south-eastern corner of the Site from those sediment control measures depicted on the Plan.

99. Also provided as part of the tender documentation provided to the Defendant was an erosion and sediment control plan, comprising three sheets, prepared by Cardno. These plans were dated 20 August 2010 and marked “Not for construction”. They are substantially the same as the plans to which I have earlier referred as the Cardno Plan. As these plans not only contained contour levels, but also the location of buildings and permanent structure intended for the Site, as well as sediment control measures, they were the plans utilised by Mr Bigeni for the purpose of preparing the Defendant’s tender. As the latter plans contained more detail and were prepared later in time than the Martens Plan, they were seen to be more appropriate for the purpose of tender. That was particularly the case as Mr Bigeni had been advised by the Preparatory School that changes had been made to the design for the Site since 2007. In this context, it will be remembered that development consent had not been granted until June 2009.

100. Following advice in May 2011 that the Defendant was the successful tenderer, the Preparatory School provided the Defendant with the construction certificate for the project. Attached to that certificate was a set of documents “For construction” that were stamped by the private certifier. The documents so marked included the Cardno Plan.

101. Mick Jukic was the project manager assigned by the Defendant to manage the Preparatory School development on the Site. Sam Orlando was employed in May 2011 as the site manager for the project. According to the evidence of Mr Bigeni, Mr Orlando was well qualified for that position. He held a degree in civil engineering and had been employed as a site manager or project manager for a number of well known construction companies between 1961 and 2009.

102. On 12 August 2011, Mr Bigeni learned of the Clean-Up Notice issued by the Prosecutor. He was provided with the email of that date from Mr Ives of the Prosecutor to Mr Jukic, together with a 29 page report prepared by Martens entitled “Concept Stormwater Quality Management Strategy” for the Site. That document, apparently prepared in November 2007, had not previously been provided to the Defendant.

103. That same day, Mr Bigeni spoke to Mr Orlando enquiring as to the reason for the Clean-Up Notice and what was being done to address it. Mr Orlando indicated that he was working “with the plan” (presumably the Cardno Plan) and that the sediment fencing and hay bales required were being put in place.

104. Mr Bigeni subsequently saw an email from Mr Jukic to Mr Ives on 15 August 2011 responding to the Clean-Up Notice, attaching a copy of the Cardno Plan and indicating it was that plan to which the Defendant was working in order to address sediment control on the Site.

105. As a result of the discussion with Mr Orlando and the subsequent email from Mr Jukic, Mr Bigeni believed that the Council’s requirements were being addressed and that the project at the Site was being conducted in accordance with the development consent.

106. On 18 August 2011, Mr Bigeni acknowledges having received the two penalty infringement notices to which I have earlier referred. He also acknowledges having received an email from Mr Ives, asserting that the Defendant was neither complying with the Clean-Up Notice nor with the Construction Management Plan. Having received those documents, Mr Bigeni raised his concern with Mr Jukic, stating that he had understood from earlier conversations with both Mr Jukic and Mr Orlando that “everything was in hand”. Mr Jukic then informed Mr Bigeni that there were “issues with the dam” in the south-eastern corner of the Site and that it could not be used until built up to a much higher level, which had not yet been achieved. Mr Jukic also asserted that heavy rains had affected the sediment fencing “in some places”.

107. Mr Bigeni states that his initial response to receiving the penalty notices and the email from Mr Ives was one of concern and distress. His distress was occasioned by the fact that the company had not previously been accused of environmental offences in the conduct of its activities. His response was to require a review by Cardno to address any further measures required for sediment control on the Site, including any revised measures brought about by the inability to use the existing dam.

108. As a result of Mr Bigeni’s intervention, a revised sediment control plan was prepared by Cardno. As earlier recorded at [41], that revised plan was provided to the Prosecutor on 26 August 2011. I do not repeat the detail of the changes made by that plan. As I have also earlier recorded, when sending that plan to the Prosecutor, Mr Bigeni stated that it was the plan to which the Defendant would work until a new dam was constructed in its permanent position towards the south-eastern corner of the Site.

109. Mr Bigeni states that for a period of five to six months from November 2011, extremely wet weather was experienced at the Site, involving regular periods of heavy rain. The earth moving and building works fell significantly behind schedule with the result that the Defendant sought and obtained from the Preparatory School an extension of time under its contract for completion of the project.

96. Mr Bigeni was aware that heavy rain was falling on 25 January 2012 when the Site was visited that day by officers of the Prosecutor. He subsequently became aware of the Clean-Up Notice issued by the Prosecutor on 30 January, which required, among other matters, that the Council be provided with “certification” that the sediment and erosion controls comply with the soil and water management plan prepared by Cardno. According to Mr Bigeni, the receipt of the notice requiring certification by reference to the Cardno plan confirmed to him that sediment and erosion controls for the Site should be implemented according to that plan.

97. Having received the Clean-Up Notice, staff, including Mr Orlando, were instructed by Mr Bigeni to attend immediately to all of the Council’s requirements. Mr Orlando responded to that instruction by email, stating that silt controls had been in place but had been washed away by the significant rainfall on the Site. He further stated that the Cardno Plan was then being addressed. As Mr Bigeni was later to learn, while some measures had been put in place, not all of the measures required by Cardno had been implemented.

98. One of the steps taken by the Defendant following receipt of the January Clean-Up Notice was to request Cardno to provide certification that sediment controls complied with that company’s plan. That request resulted in a Site visit by an engineer from Cardno. Following that visit, Mr Orlando reported to Mr Bigeni that although control measures were in place, and that further measures had been taken by the Defendant’s employees to address silt washing from the Site, those measures were insufficient to address the escape of silt without further measures being taken.

99. As a consequence, Cardno further revised the sediment control measures endorsed on a copy of the Cardno Plan. The additional measures involved the provision of a swale/cut-off drain running from the north on the eastern side of the Site to an enlarged temporary sediment basin located on the east and towards the south-eastern corner. This temporary sediment basin was to have dimensions of approximately 35m x 12m, with a depth ranging between 0.6m and 1.1m. A further swale/cut-off drain was to be provided on the south and sweeping around the south-eastern corner in the direction of the temporary sediment basin.

100. Those additional measures were implemented. This is apparent from a letter written by Cardno on 9 February 2012 and addressed to the Council. The letter states that the Site was inspected on 1 February 2012 and then reinspected on 8 February “to ensure all erosion and sediment control measures were in position”. The letter then continues:

“We confirm that the erosion and sediment control measures installed at the above mentioned site comply with drawing 600281-172A dated 26 August 2011 and drawing 600281-171B dated 22 July 2011 and drawing 600281-173A dated 4 July 2011 and as modified in red 9 February 2012 (copies attached).”

The last plan to which reference is made in that letter is the modified plan showing the additional measures that were required following the engineer’s inspection on 1 February 2012. As is apparent, that plan was provided to the Council.

115. Mr Orlando resigned from his employment with the Defendant on 10 February 2012. He had been pressed by Mr Bigeni for some time to meet the requirements of the consent and the Prosecutor for the proper installation and maintenance of sediment control structures. He cited stress from his position as being the cause of his resignation.

116. Such was the concern of Mr Bigeni for the proper control of the project at the Site, he considered that a new project manager should be appointed as well as a new site manager. In late February 2012, he appointed Daniel Prentice as project manager who, in turn, brought with him Salvatori Macri as site manager. They visited the Site late in February 2012 but did not formally commence their employment until 5 March 2012. As a result of their employment, Mr Bigeni believed that the Site was “brought back under control” and that the project “started moving forward”. Measures undertaken by Mr Prentice upon commencement of his employment will be described when I address his evidence.

117. In mid-April 2012, Mr Bigeni was aware of what he described as a significant three day rain event at the Site. On 18 April, he was informed by Mr Prentice that Council officers were on the Site, stating that sediment control measures had failed and that water from the Site was travelling down drainage channels out onto Cooyong Road. Mr Prentice reported that there was “an extraordinary amount of water onsite” and that it appears to be “too much for the fencing and straw bales to stop”.

118. The project carried out by the Defendant at the Site was completed in November 2012. It was described by Mr Bigeni as a “difficult and challenging project” both because of its location and the weather experienced during the period in which the project was being carried out. The Site is described as being in a rural or rural residential location, a description that seems to be borne out by the aerial photograph of the area with cadastral boundaries overlaid on that photograph, annexed to Exhibit A. The property immediately to the south at 58 Cooyong Road was used as a horse rider training school. This imposed some difficulty in operating large earth moving machinery because of the propensity for any sudden noise from machinery to affect the behaviour of the horses being ridden by inexperienced riders.

119. The period over which contract works were being conducted, particularly the period between June 2011 and May 2012, was a period during which constant rain interruption occurred. According to the Defendant’s records, 183 working days, being the equivalent of 30 working weeks, were lost due to rain. This interruption had the effect of doubling the estimated contract period which was stated to be 30 weeks.

120. As a result of the events that gave rise to the present charges, Mr Bigeni states that there have been two broad areas of change in the manner in which the Defendant operates. First, a senior estimator has been employed so that Mr Bigeni is able to devote more time to each of the projects being undertaken by the Defendant, including site visits and “audits” to ensure that management systems are being implemented.

121. Secondly, a number of changes have been made to the Defendant’s work, health and safety systems. These systems, introduced by an external consultant, have included environmental management systems resulting in the company being accredited with “best practice” under ISO14001:2004. The changed work practice of Mr Bigeni enables him to supervise the implementation of the environmental management system for the projects being undertaken by the Defendant at any one time.

122. Finally, the evidence of Mr Bigeni indicates the remorse that he expresses on behalf of the Defendant for the conduct of the company giving rise to the commission of the present offences. It is appropriate that I address that evidence in the context of the subjective circumstances of the Defendant, relevant to the appropriate penalty to be imposed.

123. Evidence was led by the Defendant from Daniel Prentice. Mr Prentice swore an affidavit on 13 May 2013. He was called at the hearing and was cross-examined.

124. Mr Prentice held the position of project manager with the Defendant between March 2012 and March 2013. Prior to his employment by the Defendant he had worked as a project manager on building projects for about 21 years. He was well known to Mr Bigeni who had approached him on a number of occasions to accept employment with the Defendant. In early February 2012, Mr Bigeni had again approached him and identified the project at the Site that presented challenges to the Defendant which Mr Bigeni believed could appropriately be addressed if managed by Mr Prentice. That invitation to join the Defendant was accepted by Mr Prentice on the basis that he would bring with him Mr Macri as a site manager.

125. Although his employment with the Defendant had not formally commenced, Mr Prentice visited the Site in company with Mr Macri on 29 February 2012. By prior arrangement, he there met representatives of the Preparatory School, the project architect and other employees of the Defendant. Following that meeting, Mr Prentice inspected the Site in company with Mr Macri. He was aware that rain was forecast for the evening of 29 February and, having been told of the events of August and January, when sediment laden water was discharged from the Site, he was particularly concerned to inspect sediment control measures that were then in place on the Site. He records that, on his inspection, it appeared that those measures “had been overrun by the recent, consistent rains and had the potential to fail in the event of further rain”.

126. As a consequence of that observation, Mr Prentice and Mr Macri identified particular steps that could be taken immediately to improve sediment control measures. With another employee of the Defendant, Mr Prentice and Mr Macri dug out by hand silt fencing that was in place and sought to locate and fix straw bales along the lines of drainage channels. Mr Macri was directed to buy new straw bales and additional sediment fencing for immediate installation on the Site. At that time, Mr Prentice had not seen any sediment control plan for the Site.

127. Upon commencing his employment with the Defendant on 5 March 2012, Mr Prentice was shown the Cardno Plan that had been marked up in handwriting by a Cardno engineer. The marked up plan was fixed to the wall of the Site office. A copy of that plan is annexure “C” to Mr Prentice’s affidavit. It adds to the temporary cut-off drains shown on the previous version of the plan, the provision of “rock check dams every 50m,” as well as specifying the need to stabilise existing batters. It also identifies the construction of an inlet and outlet for the temporary sediment basin to be constructed of rock. The plan also specifies the need for structures, including fences and silt traps, to be maintained on a weekly basis or “directly after each storm”.

128. Mr Prentice then set about implementing the sediment control measures that were identified in the marked up Cardno Plan. Despite what Mr Prentice describes as “significant rain” during the first half of March, silt control measures were checked, cleaned and maintained. To Mr Prentice’s observation, all of the measures seemed to be “holding up” against a significant volume of water that was on the Site. A “substantial amount” of that water was coming across the Site from Kallaroo Road. Following rain events that occurred on 17 and 18 March 2012, there was a build-up of silt against the silt fences but these were promptly cleaned out so as to maintain the efficiency of the fences. Where it was thought that additional hay bales or silt fencing was required beyond that indicated in the Cardno Plan, Mr Prentice arranged for those items to be installed. Because of the exposed, disturbed soil surface of the Site and the frequency with which rain was falling, Mr Prentice monitored the Site to ensure that all installed sediment structures remained intact and to have any accumulation of silt within those structures removed so that all were able to function as intended.

129. The Terrey Hills weather station is located approximately 1 km from the Site. Records from that weather station indicate that for the three day period between 9am on 16 April 2012 and 9am on 19 April 2012, approximately 190 mm of rain was recorded. Mr Prentice states that he was aware that heavy rain was falling on and in the vicinity of the Site and became so concerned about its impact on the Site that, around 11pm on 17 April, he requested Mr Macri to visit the Site in order to check its state. Mr Macri reported from the Site on the following morning, stating that the rain “is coming down here like you wouldn’t believe” and indicating that the Site was “completely saturated” with “water everywhere”. He informed Mr Prentice that the hay bales were in place and that the silt fencing seemed to be “holding up”. Mr Macri did not observe any sediment flowing from the Site at that time. Although no work was able to be undertaken on the Site because of the heavy rain and the volume of water passing across it, Mr Macri was instructed by Mr Prentice “to remain onsite to ensure the sediment and erosion control measures held up” and to address any questions arising or any visit from officers of the Prosecutor.

130. During the course of the day on 18 April 2012, Mr Prentice received a telephone call from Ms Peddle, a ranger employed by the Prosecutor, stating that she required a meeting on site in order to discuss “the failed erosion control measures”.

131. When Mr Prentice arrived at the Site on 19 April, he had a conversation with Mr Montgomery. In that conversation, Mr Montgomery stated that the “erosion control measures have failed”, indicating that sediment had run from the Site into drainage channels and along Cooyong Road. Mr Prentice responded by indicating the volume of water running from Kallaroo Road onto the Site and asked how the Defendant was required to address that water. Mr Montgomery told him that he should refer to the “Blue Book” for sediment control and stated that stockpiles had not been covered while “sediment fencing is failing to keep the water running off the site”. When Mr Prentice indicated that the measures taken by the Defendant accorded with the Cardno Plan, Mr Montgomery responded by stating that the plan did not “look like the plan we are working to”. Reference was again made to the need to refer to the “Blue Book”.

132. Following his meeting with officers of the Prosecutor, Mr Prentice advised Mr Bigeni of what had occurred and then arranged for Mr Macri to acquire tarpaulins and more sediment fencing. That additional material was brought to the Site where tarpaulins were used to cover soil stockpiles and more sediment fencing was erected. Reference was also made to the “Blue Book” but there was nothing that Mr Prentice discerned from that publication which was appropriate to the Site and which had not already been implemented.

133. Over the days following in April 2012 work was undertaken both on and off the site in order to address the sediment that had been moved or accumulated during the rainfall over the period from 17-19 April. Mr Prentice arranged for a team of workers to clear retained sediment behind fences and hay bales on the Site as well as the drainage lines. In addition, sediment and gravel along both the northern and southern sides of Cooyong Road were removed, although there was no evidence that sediment laden water that had travelled from the Site had flowed across to the southern side of that road.

134. On 24 April the full length of the southern embankment was covered by geotextile mesh in order to stabilise that embankment. Mr Prentice states that placement of that fabric was intended to be put in place earlier but the onset of rain had prevented that occurring. Once the embankment had been covered with that fabric, plants that had been established in pots were planted into the embankment in order to assist the process of stabilisation.

135. After 18 April 2012, there were no further recorded incidents involving the flow of sediment from the Site prior to completion of the project and the Site being handed over to the Preparatory School. This was the case notwithstanding that further rain fell in the area after April. When rainfall did occur the sediment controls were promptly cleared of any silt build-up so as to maintain their efficiency.

136. Further, Mr Prentice had adopted the practice, with the assistance of Mr Macri, of contacting the Prosecutor on each occasion upon which rain was forecast to fall in the area. The request made of the Prosecutor was that the Site be inspected to check that it regarded all sediment control measures to be in place and apparently functional. In response to such a request, an inspection was carried out on behalf of the Prosecutor by Mr Montgomery on 24 May 2012. So far as Mr Prentice was aware, no further inspection of the Site was carried out after that date.

137. In cross-examination on behalf of the Prosecutor, Mr Prentice acknowledged that as of 18 April 2012, neither the southern embankment had been stabilised by use of jute matting or other geofabric, nor had such fabric been applied to batters along the eastern boundary of the side or to the sedimentation basin in the south-eastern corner. To this extent, Mr Prentice accepted that his earlier statement to the effect that all measures required by the Cardno Plans had been implemented was not correct. He sought to explain the absence of those measures as due to both the ongoing work at the Site, so far as it was able to be advanced, and the continuing wet weather.

138. However, he denied the propositions put to him in cross-examination that the rock-check dams that Cardno had specified for drainage lines had not been installed. His evidence was that he personally had been responsible for digging out accumulated silt behind those dams prior to 18 April. He also denied that the sedimentation dam required by the amended Cardno Plan, being the plan annexure “C” to his affidavit, had not been constructed. He identified the equipment that had been used in order to excavate or clear out that area for the purpose of the dam.

139. Mr Arch, appearing for the Prosecutor, also put to Mr Prentice that the Defendant had failed to excavate any swale or diversionary structure on or towards the western boundary of the Site in order to divert water from entering the Site from Kallaroo Road. It was suggested by Mr Arch that such a requirement was imposed by the Cardno Sediment Control Plans.

140. I do not accept this to be the case. While I can accept an argument that, having viewed water running onto the Site from the north-west, some diversionary structure may have been appropriate, none of the Sediment Control Plans, either from Cardno or from Martens, identified the location of any swale or other diversionary structure on the western side of the Site.

141. The challenge to Mr Prentice directed to the absence of rock-check dams (referred to by Mr Prentice as “rip-rap”) and the absence of the sedimentation basin in the south-eastern corner, seemed to turn on photographs that were annexed to the Statement of Agreed Facts. However, nothing contained in that Statement addressed the absence of such structures and no evidence was led from Mr Montgomery directed to those matters. It will be recalled that Mr Montgomery was the only officer of the Prosecutor whose affidavit and oral evidence was called in relation to the events of 18 April 2012. Moreover, the photographs relied upon by Mr Arch were photographs taken on 1 May 2012 when it was acknowledged by Mr Prentice that works had been carried out on the Site which changed the form and nature of structures that existed as of 18 April.

142. I accept the evidence of Mr Prentice as being generally indicative of the state of the Site at the time of the offence against s 120 of the POEO Act. He was candid in acknowledging that the state of the site, when he first became responsible for the project, was poor and that under his control substantial efforts had been made to ensure that sediment control measures were in place that generally conformed with the requirements of the Cardno Plan. He was in error in asserting that everything required by those Plans had been effected prior to 18 April but that error does not dissuade me from accepting the general tenor of his evidence. Other than Mr Montgomery’s statement on 18 April that reference should be made to the “Blue Book”, the absence of evidence from him or any other officer of the Prosecutor who was present on that day, identifying the absence of measures that the Cardno Plan required to be in place, provides additional comfort in accepting the evidence of Mr Prentice both as to the state of the Site on 18 April and the measures that had been taken by the Defendant to address sediment control.

173. An allegation of negligence in assessing the objective gravity of an offence against s 120 of the POEO Act was considered by Biscoe J in Environment Protection Authority v Snowy Hydro Ltd [at 142-150]. I respectfully embrace the consideration given by his Honour to the De Simoni principle in this context. I applied those observations in Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 at [101-103]. Consistently with the observations there made, I would not approach the imposition of a sentence in the present case on the basis that the conduct of the Defendant was reckless in committing the offence against s 120 of the POEO Act.

174. Furthermore, the evidence does not support such a finding. Although I have earlier identified some aspects in respect of which the Defendant had not complied with the Cardno Plan prior to the pollution offence in April 2012, it had made considerable and serious endeavours to provide sediment and erosion control measures, which, according to the evidence of Mr Prentice that I accept, exceeded the requirements of the revised Cardno Plan. The Defendant’s conduct in so doing bespeaks neither recklessness nor negligence.

175. There is one aspect of the Prosecutor’s submission in this context that should be addressed. It contended that the Defendant was given express warning by Cardno in February 2012 that its control measures were insufficient and that the subsequent certification of appropriate measures was either misleading or, at best, disingenuous. I do not accept this submission, essentially because it does not properly address the evidence that was given.

176. It is undoubtedly correct to observe, as the Prosecutor did, that when an engineer from Cardno inspected the site on 1 February 2012, he identified inadequacies in both the works installed as well as the design intended to address erosion and sediment control. The consequence of that observation was a revision of the Cardno Plan and subsequent inspection of the Site to address installation of the revised measures. The installation of revised measures is the subject of the letter of certification addressed to the Council on 9 February 2012.

177. Furthermore, upon his appointment as Project Manager, Mr Prentice recognised inadequacies in the sediment controls installed on the Site and took immediate steps to redress those inadequacies. That redress included not only the undertaking of further work but a further revision of the Cardno Plan, undertaken by an engineer from that organisation, which, as I have earlier recorded, was substantially implemented.

178. Based upon that evidence it is incorrect on the part of the Prosecutor to contend that it was known to the Defendant “in advance of the offence of 18 April 2012, that a further pollution incident was likely to occur if it did not take additional measures, above and beyond those described in the Cardno Plans”.

179. Conclusion on Objective Seriousness of the Offences

180. All of the factors I have addressed bear upon the objective seriousness of each offence. The Prosecutor submitted that I should characterise each offence as being serious. I do not accept that both offences should be so categorised.

181. Those factors of particular significance to characterising the offence against s 125(1) of the EPA Act are the foreseeability of harm resulting from the offence and the fact the Defendant had complete control over the cause of the offence, in that it failed to implement the conditions of consent imposed upon it when the need for compliance had been demonstrated by the events and actions of the Prosecutor in August 2011. I consider that this offence is within the low to medium range of objective seriousness.

182. The factors of particular significance to characterising the offence against s 120 of the POEO Act are the likely environmental harm from committing the offence, together with the measures available to mitigate that harm. I consider the objective seriousness of this offence to be low.

Subjective Factors

231. Within the limits set by the objective seriousness of the offence, the Court is required to take into account subjective factors, both favourable and unfavourable to the offender. A number of such factors are identified in s 21A of the Sentencing Act.

232. Prior criminality

233. A mitigating factor to which the Defendant is entitled to advert is that it “does not have any record (or any significant record) of previous convictions”: s 21A(3)(e) of the Sentencing Act. There is no record of any offence for which the Defendant has previously been convicted.

234. The Prosecutor seeks to rely upon Penalty Infringement Notices issued to the Defendant in August 2011. It submits that these reflect a “prior record” which constitutes an aggravating factor for the purpose of assessing penalty. I do not accept that submission.

235. Both Penalty Infringement Notices were given under the POEO Act. The first related to a failure to improve and maintain vehicular entrances and exits from the Site in order to prevent vehicles tracking sediment from the Site. As would be obvious, that is irrelevant to the offences to which the Defendant has pleaded guilty.

236. The second Penalty Infringement Notice was directed to the pollution of water that occurred in August 2011. It does not amount to a conviction for an offence of that kind under s 120 of the POEO Act. So much is apparent from the provisions of s 225 of that Act. It is not a “conviction” to which s 21A(3)(e) refers.

237. As my earlier discussion demonstrates, I accept that the Penalty Infringement Notices of August 2011 are relevant to the issue of foreseeability. However, given that they relate to the same Site and events of the kind that gave rise to the present prosecutions, the Defendant is entitled to submit, as it has, that over the years in which it has conducted its business as a construction contractor, there is no evidence of any offence being committed, other than in respect of this Site when carrying out the Project giving rise to the present offences.

238. Remorse and Contrition

239. Section 21A(3)(i) provides that remorse shown by an offender for an offence is a mitigating factor, but only if:

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

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

240. In the context of that provision, there is evidence before me, which I accept, demonstrating the remorse of the Defendant for each offence it has committed. That evidence, in essence, takes three forms.

241. The tenor of evidence expressed by Mr Bigeni in his affidavit sworn 10 May 2013 is consistent with an expression of remorse. He states that, following receipt of the Penalty Infringement Notices in August 2011, he was distressed because of the impact such Notices had upon the Defendant’s otherwise untarnished reputation. His response was to require immediate action in order to address the shortcomings of the Defendant’s conduct. Further, he stated that the Clean-Up Notices, the Penalty Infringement Notices and the present charges against the company “take away from the pleasure and pride my employees and I feel” in carrying out projects of the kind involved on the Site. He further states that each time there has been contact with him from his present legal advisors, asking that he “do something else to deal with these charges”, he feels “bad” as that contact reminds him “of the mistakes we made”. He concludes that part of his evidence by stating that the situation in which the Defendant finds itself “is not a situation I ever want to experience again”.

242. As Preston CJ observed in Environment Protection Authority v Waste Recycling and Processing Corp at [203], contrition and remorse “will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives”. The reference to “smooth apologies” might be extended to some written form in which contrition is expressed without the author of the document subjecting him or herself to scrutiny or cross-examination in Court. In the present case, not only did Mr Bigeni swear an affidavit, he was cross-examined by the Prosecutor in which his expression of remorse was able to be tested.

243. The actions of the Defendant, instigated by Mr Bigeni and consistent with remorse, take several forms. First, his immediate response to the offence against s 125(1) of the EPA Act was to issue several instructions to his project staff to do that which was required of the Defendant under the Development Consent. When he appreciated that staff to whom that initial direction was given were not responding appropriately, he appointed Mr Prentice to the role, believing, with justification as it turned out, that he would undertake the necessary work required.

244. Secondly, he ensured, through Mr Prentice, that following the pollution offence in April 2012, clean-up action was taken that extended beyond the sediments in the local area that were discharged from the Site. That additional work is the subject of evidence from Mr Prentice to which I have earlier referred. It is not suggested by the Prosecutor that anything that could have been done was not done by the Defendant to remove sediments from the unnamed tributary of Kierans Creek.

245. The third source of evidence supporting a demonstration of remorse and acceptance of the need for change in the way in which the Defendant conducted its operations also emerges from the evidence of Mr Bigeni. He stated that, following the pollution offence, a number of steps were taken to improve work, health and safety and environmental management with the aid of an independent organisation. Under the guidance of that organisation, environmental management changes were made and have since resulted in systems that meet an international environmental management standard. Moreover, Mr Bigeni took the step of removing himself from complete responsibility for preparation of tender estimates so that he could take a more active role in overseeing project management, including environmental management.

246. I do not accept the submission of the Prosecutor that remorse has not been demonstrated, essentially for the reasons that I have stated. The Prosecutor submitted that there was no evidence of any particular steps taken for the environmental management of the Site. That submission, so it seems to me, overlooks two very important pieces of evidence. First, there were the steps identified in the evidence of Mr Prentice following the pollution event in April 2012 to which I have earlier referred. Secondly, there is no evidence of any further event occasioning a breach of either the EPA Act or the POEO Act between April 2012 and November 2012 when the Project was completed and the Site returned to the control of the Preparatory School. The absence of any event demonstrating breach is consistent with the Defendant having taken appropriate measures to address the recurrence of events that gave rise to the present charges.

247. The Defendant is entitled to have considered, as a mitigating factor, the contrition and remorse that it has demonstrated.

248. Likelihood of re-offending

249. I have earlier recorded that the Defendant has been involved in building and construction projects since 2002. Many of those projects have been of a kind undertaken on the Site. The absence of any offence involved in carrying out its business until the present Project, identifies the Defendant as an entity that has hitherto abided by the law. Of greater significance in the present context is that it has taken a number of steps to address the causes leading to the commission of the present offences. Those steps have earlier been outlined. The fact that they have been taken, coupled with the evidence of Mr Bigeni as to the salutary effect which the experience on the Site has afforded, leads me to conclude that the likelihood of the Defendant re-offending is low. This finding is a mitigating circumstance: s 21A(3)(g).

250. Early Plea of Guilty

251. Prior to the first return date of the Summons by which the Defendant was charged with the offence against s 120 of the POEO Act, the Defendant’s legal advisors had advised the Prosecutor’s legal advisors that a plea of guilty to that offence would be entered. The Prosecutor accepts that the plea of guilty to that offence was entered at the earliest opportunity.

252. A plea of guilty was entered to the offence against s 125(1) of the EPA Act on the third mention of the Summons instituting the Prosecution in that matter. That plea was entered following an inspection of the Council’s documents, arrangements for which were made immediately following the first mention of the Summons. In that circumstance, the Prosecutor accepts that there was an early plea of guilty and that to the extent there was any diminution in the utilitarian value of the plea to that charge, it was only a minor diminution.

253. However, the Prosecutor submitted that the utilitarian value of the pleas of guilty was limited. This submission was made on the basis that, had the charges been defended, the issues for consideration would “not have been complex” and that a conviction was inevitable.

254. The assessment that the Prosecutor seeks to have me accept is not one that is self-evident. This is because the substantial evidence in the Prosecutor’s case is reflected in the Statement of Agreed Facts. The additional evidence read and lead by the Prosecutor added little to that Statement particularly because only a limited number of paragraphs from selected affidavits sworn on behalf of the Prosecutor were read in the hearing before me. I am unable adequately to properly assess the strength of the Prosecutor’s case in the absence of the Defendant’s agreement to facts reflected in Exhibit A.

255. I accept the submission of the Defendant that there was utilitarian value in the early pleas of guilty. That fact must be considered in mitigation of penalty: ss 21A(3)(k) and 22 of the Sentencing Act. The Defendant is entitled to the benefit of a discount of 25% for the plea in each matter (R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [152]).

256. Assistance to Law Enforcement Authorities

257. The Prosecutor accepts that the Defendant did co-operate with the Prosecutor in investigating the commission of each offence. Mr Bigeni voluntarily attended an interview with officers of the Prosecutor. In addition, he instructed his legal representatives to co-operate with the Prosecutor, in the preparation of the primary evidentiary document, namely Exhibit A. This assistance is a mitigating factor in favour of the Defendant: ss 21A(3)(m) and 23 of the Sentencing Act.

258. Payment of the Prosecutor’s Costs

259. The Court has power to order an offender to pay both the Prosecutor’s legal costs and also its investigation costs of proceedings: ss 257B and 257G of the Criminal Procedure Act 1986 (NSW). The payment of those costs is an aspect of punishment that may be considered when determining an appropriate penalty (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and [88]).

260. The Defendant has accepted that it should pay both investigation and legal costs. However, factoring in the quantum of costs does not mean that there should be a reduction in penalty, otherwise appropriate, that is commensurate with the quantum of those costs.

261. The investigation costs sought by the Prosecutor is the sum of $1954.20. As I understand its submission, the Defendant accepts payment of this sum. However, legal costs claimed on behalf of the Prosecutor are for the sum of $72,000. While the Defendant accepts that it should pay legal costs, it challenges the sum sought. Although this sum appears to me to exceed what would otherwise be appropriate, having regard to the manner in which the sentence proceedings were conducted, I am in no position to assess the appropriateness of this sum. As a consequence, the quantum of costs will have to be determined conformably with provisions of s 257G of the Criminal Procedure Act.

262. Conclusion on Subjective Considerations

263. The subjective circumstances of the Defendant operate, for the reasons stated, to mitigate the penalty that would otherwise be imposed by the Court for the commission of each offence. The degree to which that penalty should be discounted will be considered in due course.

Application under s 10 of the Sentencing Act

264. The Defendant submitted that for the offence against s 120 of POEO Act, I should exercise the discretion available to the Court under s 10 of the Sentencing Act. That section relevantly provides:

“10   Dismissal of charges and conditional discharge of offender

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

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

Subsection (3) of the same section provides:

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

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

(b)    the trivial nature of the offence,

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

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

265. The principles relevant to the application to s 10 were considered by Biscoe J in Blue Mountains City Council v Carlon [2008] NSWLEC 296. The defendant in that case pleaded guilty to the offence against s 125(1) of the EPA Act. The defendant sought an order under s 10(1)(a) of the Sentencing Act. The principles identified by his Honour at [67] - [71] may be summarised as follows:

1. it is not necessary to the application of the section that the offence be characterised as trivial; all factors identified in subs (3) of the section are intended to be disjunctive and non-exhaustive (R v Paris [2001] NSWCCA 83 at [42]);

2. the dismissal of charges under s 10 reflects the willingness of the legislature to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character (R v Van Nam Nguyen [2002] NSWCCA 183 at [50]);

3. none of the criteria in s 10(3) are conclusive but all must be taken into account (R v Paris at [43], [48], [49]; Attorney-General’s Application (No 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305 at [13]);

4. where the offence charged is one of strict liability, it is unusual for a defendant to receive the benefit of s 10, even if the defendant genuinely believed that the prohibited activity could be lawfully undertaken;

Although, as is apparent, the observations made by his Honour in that case were directed to an offence against s 125(1) of the EPA Act, those observations are equally apposite to an offence against s 120 of the POEO Act. By its very terms, an offence under s 120 is a ‘result offence’ so that the lack of any intention to have committed the offence will always be irrelevant.

266. In so saying, I do not ignore the observations of Spigelman CJ in Thorneloe v Filipowski [2001] NSWCCA 213; 52 NSWLR 60 where at [171] his Honour said:

“Even in the case of an offence of strict liability, no public purpose is served by recording a conviction or imposing a penalty in circumstances where the relevant accused could not, as a matter of practical reality, have done anything to ensure that the offence or, in the case of a result offence, the adverse consequences of the conduct, did not occur.”

His Honour continued at [178]:

“It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act, in the context of a strict liability offence, to consider what the applicant for the benefit of s 10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeat offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight.”

267. In seeking the exercise of the discretion under s 10 for the offence against s 120, the Defendant essentially identified those two sources of evidence. First, it relies upon on the combined evidence of Mr Bigeni and Mr Prentice to the effect that all had been done before 18 April 2012 in order to avert the escape of sediments from the Site.

268. Secondly, it relies upon the evidence of Mr Staniland to the effect that implementation of the measures identified in the Cardno Plan was both reasonable and appropriate, having regard to the requirements of the Blue Book, and that the rain events of 16, 17 and 18 April, particularly that on 18 April, were such that no reasonable measures for a construction site would have avoided the escape of sediments from the Site.

269. For reasons earlier indicated, I do not fully accept these factual contentions. The Cardno Plan had not been fully implemented. I have also found that there were practical measures that were open to the Defendant to have taken which are likely to have had the effect of reducing the quantum of sediments that escaped from the Site. While I have categorised the objective seriousness of the offence as being low, given the circumstances in which it occurred, I cannot regard it as being trivial.

270. Furthermore, I cannot ignore the circumstance that what had occurred on the Site between August 2011 and March 2012 had demonstrated its sensitivity to the escape of sediments. By reason of the manner in which I have categorised the offence and these earlier events, the pollution offence cannot be described as “comparatively minor pollution by a first offender”. It was an offence in respect of which “the adverse consequences of the [offending] conduct” did in fact occur.

271. In light of the matters that I have identified, I am not satisfied that the offence against s 120 is one that attracts the discretion available under s 10 of the Sentencing Act. The offence was not trivial and given the events preceding the commission of the offence, it cannot be said that the circumstances in which the offence was committed were extenuating. That does not mean that I ignore, for the purpose of imposing penalty, the weather conditions that prevailed at the time.

The Appropriate Sentence

272. The imposition of a sentence serves a number of purposes. As the provisions of s 3A of the Sentencing Act indicate, those purposes include retribution and denunciation, as well as deterrence, both specific and general.

273. General Deterrence

274. The need for general deterrence when fixing an appropriate penalty is an important consideration in the sentencing process. The penalty must be sufficient to deter others who, by oversight or inadequacy in process systems, run the risks of committing an offence against either the EPA Act or the POEO Act in the hope that for any oversight or inadequacy that is exposed, only nominal penalties will be imposed.

275. In the case of the offence against the EPA Act, a penalty reflecting an element of general deterrence is required to ensure that a contractor carrying out work pursuant to a development consent does so in accordance with that consent, including the conditions upon which it has been granted (Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 at [34]).

276. As I have earlier identified, an object of the POEO Act is to prevent pollution. A means by which this is achieved is the imposition of penalties that are sufficiently substantial to encourage industry to adopt preventative measures (Axer Pty Ltd v Environment Protection Authority at 359-360). The necessity for contractors engaged in substantial site works to ensure that water pollution does not occur, by undertaking appropriate erosion and sediment control measures either in advance of those works or, sufficient to address works as they progress, is a message that needs to be given by the imposition of an appropriate penalty.

277. Specific Deterrence

278. For reasons earlier stated, I have accepted that the Defendant is unlikely to re-offend. That finding has the consequence that there is no need to include in the penalty to be imposed any element for specific deterrence.

279. Consistency in Sentencing

280. Relevant to the exercise of determining an appropriate sentence is the ascertainment of a general pattern of sentencing by courts for offences of the kind presently being considered. In so doing, it is important to recognise that there is difficulty in attempting to compare the penalty imposed in one case with the penalty considered appropriate in another. The wide divergence among cases both as to the objective gravity of the particular offence and the subjective circumstances of a defendant demonstrate the caution to be exercised when seeking to make any such comparison (Axer Pty Ltd v Environment Protection Authority at 365).

281. The Prosecutor identified a number of cases in which penalties had been imposed for offences that involved the discharge of sediment-laden waters from development sites. It did not identify any particular case as warranting close comparison with the circumstances in which the present charge occurred. The cases to which the Prosecutor did refer in this regard indicated a range of penalties between $10,000 and $30,000. It was submitted that this range is too low for application to the present case because the Prosecutor categorised the pollution event as serious and one which was the result of a reckless state of mind. I have earlier rejected each of these descriptors.

282. Reference to cases that have involved a breach of s 125(1) of the EPA Act by reason of a failure to adhere to conditions of development consent demonstrate penalties as low as $15,000 and as high as $250,000 before applying discounts for the subjective circumstances of the respective defendants.

283. In the present case, I regard the offence against s 125 of the EPA Act to be the more serious of the two offences with which the Defendant is charged. That determination is made not by focusing upon the environmental impact of the offence, but rather upon the fact that ample warning of a potential breach and its consequences had been signalled by the events of August 2011. Yet by January 2012, those signals had not been heeded.

284. The offence against s 120 of the POEO Act should attract a penalty at the low end of the range. It is one that is largely explainable by the rainfall events that occurred in April 2012 to which I have already referred. Generally, the Defendant had endeavoured to implement measures intended to address the possibility of offending and as a consequence, a relatively low penalty is justified.

285. The penalty to be imposed for each of the offences is the imposition of a fine. The amount to be imposed for the two offences with which the Defendant is charged should be determined by an instinctive synthesis of all the relevant objective and subjective circumstances of the offence and of the offender (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [37]-[39], [66] and [73]). Accordingly, I have taken into account each of the objective circumstances of the offence and those pertaining to the Defendant, including the objective gravity that I have determined for each offence as mitigated by the relevant subjective circumstances of the Defendant.

286. Applying that instinctive synthesis, I consider that the appropriate penalty for the offence against s 125(1) of the EPA Act is $50,000 before applying the discount to which I will shortly refer. Applying that same synthesis to the offence against s 120 of the POEO Act, the appropriate penalty for that offence, before discount, is $20,000.

287. The Totality Principle

288. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences (R v Holder; R v Johnston [1983] 3 NSWLR 245; Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [18]. In Holder, Street CJ said at [260]:

“The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary …”

289. The principle will most often be invoked when an offender is being sentenced at the one time for multiple offences arising out of common or related criminal acts (Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 at [128]). In the present case, the offences charged do involve related criminal acts in that they arise from the construction and maintenance of sediment and erosion control measures during a single project at the Site.

290. Application of this principle in the present case will result in a reduction of the aggregate penalty that would otherwise have been imposed had the offences not arisen from common or related criminal acts.

291. Conclusion on Penalties

292. I have concluded that the appropriate discount should be 30%, inclusive of a 25% discount for the utilitarian value of the early guilty pleas.

293. As I have determined, the appropriate penalty for the commission of the offence against s 125(1) of the EPA Act is $50,000. Applying a discount of 30% to this figure, the fine to be imposed will be in the sum of $35,000.

294. I have also determined the appropriate penalty for the offence against s 120 of the POEO Act to be $20,000. If a discount of 30% is applied to that sum, it will leave a net penalty of $14,000. However, a further discount is to be applied in order to reflect the totality principle. In so doing, I determine that the appropriate fine for this offence is $10,000. The aggregate penalty of $45,000 for both offences seems to me to reflect fairly the total criminality of the Defendant in committing the offences for which it has been charged.

295. When determining these penalties, I have taken into account the fact that the Defendant will also bear the Prosecutor’s legal costs, as determined in the manner earlier identified.

Publication Order

296. The Prosecutor seeks an Order under s 250(1)(a) of the POEO Act that the commission of the offence against s 120 of that Act, its environmental consequences, the fines and the order for costs made in these proceedings be the subject of notice to be published in two Sydney newspapers. That course is open to the Court but is not one compelled by legislation.

297. While publicity of an offence and the fines imposed for it can serve a useful purpose, I am not satisfied that it is either necessary or appropriate to be imposed in the present case. Essentially, my reason for so concluding is that the efforts made by the Defendant to install appropriate measures to address sediment discharge from the Site, coupled with the extraordinary event that caused the discharge do not warrant the further impost of publication.

Orders

298. For the reasons I have articulated, I make the following orders:

Proceedings 51226 of 2012:

1. The Defendant is convicted of the offence as charged.

2. The Defendant is fined the sum of $35,000.

Proceedings 51227 of 2012:

3. The Defendant is convicted of the offence as charged.

4. The Defendant is fined the sum of $10,000.

Both Proceedings:

5. Pursuant to s 248(1) of the Protection of the Environment Operations Act 1997, the Defendant is ordered to pay the Prosecutor’s investigation costs of $1,945.20.

6. The Defendant must pay the Prosecutor’s costs of both proceedings, such costs to be determined in accordance with s 257G of the Criminal Procedure Act 1986.

7. Exhibits may be returned.

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Decision last updated: 04 September 2015