Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 Hearing dates: 11 February 2021 Date of orders: 09 March 2021 Decision date: 09 March 2021 Jurisdiction: Class 5 Before: Robson J Decision: See orders at [178] Catchwords: ENVIRONMENT AND PLANNING — Offences — Water pollution — Sentencing — Plea of guilty — Discharge of sewage — Determination of objective seriousness of offence — Extent of environmental harm — Prior sewage discharge not the subject of charge — Subjective circumstances of offender — Prior convictions for environmental offences Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22 Criminal Procedure Act 1986 (NSW) ss 257B, 257G Fines Act 1996 (NSW) s 122 Protection of the Environment Operations Act 1997 (NSW) ss 3, 64, 120, 241, 248, 250 Cases Cited: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Duffy v R [2009] NSWCCA 304 Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71 Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 Environment Protection Authority v Ecolab Pty Limited [2002] NSWLEC 206; (2002) 123 LGERA 269 Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26 Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39 Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76 Environment Protection Authority v Sydney Water Corporation [1998] NSWLEC 144 Environment Protection Authority v Sydney Water Corporation [1999] NSWLEC 60 Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 80 Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156 Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v O'Neill [1979] 2 NSWLR 582 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Veen v R (1979) 143 CLR 458; [1979] HCA 7 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Sydney Water Corporation (Defendant) Representation: Counsel: R Ranken (Prosecutor) S Hall (Defendant) Solicitors: Environment Protection Authority (Prosecutor) Clayton Utz (Defendant) File Number(s): 2019/00326592; 2019/00326594 Publication restriction: Nil Judgment 1. The defendant, Sydney Water Corporation ('Sydney Water') has pleaded guilty to two offences of polluting water under s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act') (together, 'the Offences'). The Offences arise from discharges of untreated sewage; and/or excreta and urine; and/or matter containing faecal coliform or faecal streptococci (together, 'sewage') into Toongabbie Creek near its confluence with Parramatta River, which flowed downstream. Discharges which occurred between 4.00pm on 21 October 2018 and 9.35pm on 23 October 2018 (the 'First Discharge') constitute the first offence (the 'First Offence'), and discharges which occurred between 7.57pm on 26 October 2018 and around 1.15pm on 27 October 2018 (the 'Second Discharge') constitute the second offence (the 'Second Offence'). A sentence hearing was held on 11 February 2021 and this judgment concerns the imposition of an appropriate sentence in relation to each of the Offences. 2. In relation to the First Discharge, the summons filed by the prosecutor, the Environment Protection Authority ('EPA'), on 18 October 2019, charged Sydney Water as follows: "1. An order that the defendant, Sydney Water Corporation, having its head office at 1 Smith Street, Parramatta, in the State of New South Wales, appear before a Judge of the Court to answer the charge that, from about 21 October 2018 to about 23 October 2018 inclusive, at or near the North Head Sewage Treatment Plant reticulation system (Premises), including overflow structure (asset no. 1372287) (Overflow Structure) and sewage pumping station SPS0103 (Pumping Station) on Lot 1 DP 345263 at 2A Balfour Street, Northmead, in the State of New South Wales, it committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 in that it polluted waters. Particulars a. Waters Toongabbie Creek, at or near its confluence with the Parramatta River, and downstream thereof. b. Pollutant i. untreated sewage; and/or ii. excreta and urine; and/or iii. matter that contains faecal coliform or faecal streptococci. c. Manner of breach On or about 21 October 2018 the Pumping Station failed which caused the Pollutant to divert to the Overflow Structure and into the Waters. ..." 1. In relation to the Second Discharge, the summons filed by the prosecutor on 18 October 2019, charged Sydney Water as follows: "1. An order that the defendant, Sydney Water Corporation, having its head office at 1 Smith Street, Parramatta, in the State of New South Wales, appear before a Judge of the Court to answer the charge that, from about 26 October 2018 to about 27 October 2018 inclusive, at or near the North Head Sewage Treatment Plant reticulation system (Premises), including overflow structure (asset no. 1372287) (Overflow Structure) and sewage pumping station SPS0103 (Pumping Station) on Lot 1 DP 345263 at 2A Balfour Street, Northmead, in the State of New South Wales, it committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 in that it polluted waters. Particulars a. Waters Toongabbie Creek, at or near its confluence with the Parramatta River, and downstream thereof. b. Pollutant i. untreated sewage; and/or ii. excreta and urine; and/or iii. matter that contains faecal coliform or faecal streptococci. c. Manner of breach The Pollutant travelled between and/or around the stop boards installed in the Overflow Structure and into the Waters. ..." Background 1. The factual background to the Offences and the evidence marshalled in this sentence hearing are largely uncontentious. The primary evidence received by the Court comprised a detailed statement of agreed facts filed 30 November 2020. Sydney Water also read the affidavit of Ms Emanuela Demo, affirmed 21 December 2020 and the affidavit of Mr Iain Fairbairn, affirmed 21 December 2020. 2. The Offences occurred in the context of a broader incident, whereby the internal "wet well" within the pumping station collapsed causing sewage to be discharged into Toongabbie Creek near its confluence with Parramatta River (as further described at [24]-[41] below) (the 'Incident'). An in-depth summary of the salient facts follows, as details of the relevant infrastructure, chronology of events and consequences of events assists in understanding the submissions of the prosecutor and Sydney Water in relation to the Offences and the Incident. Northern Suburbs Sewage Treatment System 1. Sydney Water is engaged in the treatment of sewage using the Northern Suburbs Sewage Treatment System and its associated reticulation system (the 'System'). 2. The System includes: 1. The sewage pumping station SPS103 located on land at Lot 1 DP 345263, being at 2A Balfour Street, Northmead (the 'Pumping Station'); and 2. The directed overflow structure (Asset No 1372287) that is associated with the Pumping Station (the 'Overflow Structure'). 1. As the owner and occupier of the System, Sydney Water is responsible for the operation, inspection, maintenance and repairs of both the Pumping Station and the Overflow Structure. The Pumping Station 1. The Pumping Station is located on the northern bank of Toongabbie Creek (approximately 40m from the water's edge), and slightly upstream of the confluence between Toongabbie Creek, Darling Mills Creek and Parramatta River. 2. The Pumping Station was constructed in approximately 1941 to collect sewage from the upstream wastewater catchment area and pump the sewage to the Northern Suburbs Ocean Outfall Sewer ('NSOOS') main. 3. At the time of the Incident, the Pumping Station comprised a single-story brick building constructed over a large underground shaft. Key features of the shaft included: 1. a central "dry well" which housed two pumps (the 'dry well'); 2. a surrounding annulus known as the "wet well" which received sewage (the 'wet well'), with a "weir" dividing the wet well in two; 3. a concrete "inner wall", which separated the dry well from the wet well (the 'inner wall'); and 4. two 600mm diameter pipes carrying sewage, called "rising mains". The rising mains extended vertically from the pumps in the bottom of the dry well, horizontally through the inner wall, across the wet well, through the outer wall and then underground outside the Pumping Station to a valve pit and then to the NSOOS. One rising main was made from cast iron and constructed in 1965 (replacing the original 375mm diameter cast iron rising main installed around 1941) (the '1965 Rising Main'), and the other was made from ductile iron and lined with cement, and constructed in 1996 (the '1996 Rising Main'). 1. Sewage was conveyed to the wet well of the Pumping Station, temporarily held in the wet well, and then pumped out of the shaft of the Pumping Station through the rising mains to the NSOOS. The Overflow Structure 1. The Overflow Structure is located on the opposite side of Toongabbie Creek to the Pumping Station, near the confluence of Toongabbie Creek and Parramatta River. 2. Sewage is automatically directed from the Pumping Station to the Overflow Structure via a pipe in the wet well wall when the sewage level in the wet well reaches a certain capacity. Sewage is then discharged from the Overflow Structure into Toongabbie Creek. 3. In this way, the Overflow Structure operates as a "relief" which allows sewage to discharge from the System into Toongabbie Creek in the event of wet weather and/or operational failure of the Pumping Station. This avoids sewage overtopping and flooding the Pumping Station and discharging from the Pumping Station onto the surrounding developed properties (causing public health risks). Operation of the Pumping Station and Overflow Structure 1. At the time of the Incident, the Pumping Station had a maximum pumping capacity of 628 litres per second. Demand (based on population in the catchment area) for Pumping Station capacity during "peak dry weather flows" was estimated to range from 250 litres per second (for weekends) and 275 litres per second (for weekdays) (based on measured 2016 flows), to 461 litres per second (based on 2017 modelling over a larger area). 2. The "wet well detention time" of the Pumping Station was approximately 15 minutes during peak dry weather flows. This meant that 15 minutes of sewage flow could be held in the wet well of the Pumping Station (and its catchment storage) before sewage would be automatically directed to the Overflow Structure and discharge into Toongabbie Creek. 3. Sydney Water's standard required minimum response time for responding, implementing contingency measures and containing emergency situations was four hours. As the Pumping Station did not have storage capacity for a detention time of four hours, a dual power supply was installed to improve the reliability of the Pumping Station operations (in accordance with Sydney Water's operation code WSA 04-2005-2.1). 4. At the time of the Incident, Sydney Water had taken a number of additional steps to address the detention time issue at the Pumping Station, including: first, approval for two onsite contingency pumps with a capacity of 628 litres per second on a duty standby arrangement; and secondly, progressing internal project approval for a new pumping station at Northmead. Despite this, there was no feasible contingency plan to prevent dry weather overflows if the Pumping Station failed. Environment Protection Licence No. 378 1. At all relevant times, Sydney Water held Environment Protection Licence No. 378 ('EPL 378'), which authorises the carrying out of sewage treatment in excess of 30,000 ML per annum at the System. 2. Condition L1 of EPL 378 provides as follows: "L1 Pollution of waters L1.1 Except as may be expressly provided in any other condition of this licence, the licensee must comply with section 120 of the Protection of the Environment Operations Act 1997. L1.2 Subject to the conditions of this licence, sewage must not be discharged from the components of the reticulation system except from those components identified on the system map. L1.3 Notwithstanding the provisions of the condition above, this licence does not permit the pollution of waters at any time during dry weather from: a) uncontrolled overflows, or b) directed overflows other than from sewage pumping stations, if a cause of the pollution is a failure to: i) operate any part of the reticulation system in a proper and efficient manner; or ii) maintain any part of the reticulation system in a proper and efficient condition. L1.4 This licence does not permit the pollution of water at any time during dry weather from any pumping station. This condition is effective from 1 July 2006." 1. The effect of the above conditions and the definitions of "wet weather" and "dry weather" contained in EPL 378, is that sewage discharges were permitted from the Pumping Station via the Overflow Structure during "wet weather" periods (being periods where more than 10mm of rain has been measured at a rain gauge in the catchment area of the Pumping Station within the previous 24 hours) but not "dry weather" periods (being periods where less than 10mm of rain has been measured at a rain gauge in the catchment area of the Pumping Station within the previous 24 hours). 2. Relevantly, the period directly after the Incident when sewage was discharged from the Pumping Station prior to 4.00pm on 21 October 2018 constituted "wet weather", so the discharge of sewage that occurred prior to 4.00pm on 21 October 2018 (as detailed below) was lawful under EPL 378 (the 'Wet Weather Discharge'). The period after 4.00pm on 21 October 2018 constituted "dry weather" so the discharge of sewage (being the First Discharge and the Second Discharge) was unlawful under condition L1.4 of EPL 378. Chronology of the Offences Limited chronology 21 October 2018 1. Alarms notified Sydney Water's System Operations Centre of the Incident at the Pumping Station at about 7.22am on 21 October 2018. At about 8.00am, Sydney Water staff attended the Pumping Station, and by 8.47am had identified that "the internal wet well had collapsed", causing the Pumping Station building to crack, and causing the pumps in the dry well to become submerged by flooding and inoperable (as agreed by the parties). 2. The Pumping Station was inoperable and in "full overflow", meaning that all incoming sewage was being discharged via the Overflow Structure into Toongabbie Creek near its confluence with Parramatta River, and flowing downstream. 3. Sydney Water notified the EPA of the Incident via SMS, and other relevant authorities by telephone, shortly after 9.00am. Fire and Rescue NSW ('FRNSW') arrived at about 11.30am and by about 2.15pm had installed a "floating boom" in Toongabbie Creek about 20m downstream from the Overflow Structure, in an attempt to prevent effluent solids from travelling downstream. 4. Sydney Water deployed two tankers to pump sewage out of a manhole upstream of the Pumping Station around 11.00am, however this only removed approximately 20% of the sewage inflows into the Pumping Station. As power supply to the Pumping Station had been cut due to safety concerns, Sydney Water progressively installed four temporary diesel generated pumps throughout the day to divert sewage inflows from the Pumping Station. One pump became operational at 2.30pm, two pumps became operational at 4.50pm, and the final pump became operational at 10.10pm. 5. The pumps and tankers deployed by Sydney Water did not have sufficient pumping capacity to divert all sewage inflows away from the Pumping Station and sewage continued to discharge from the Overflow Structure into Toongabbie Creek until around 2.00am on 22 October 2018. 22 October 2018 1. The sewage discharge resumed at around 8.00am on 22 October 2018, as the four temporary diesel pumps had insufficient capacity to deal with the sewage inflow. Sydney Water was working to bring electric pumps online, but this was delayed until a structural and safety risk assessment could be completed. 2. By about 12.30pm, Sydney Water had commissioned 9 tankers to support the temporary diesel pumps by pumping sewage out to reduce inflows into the Pumping Station. However, the pumps and tankers still did not have enough capacity to divert all inflows of sewage away from the Pumping Station and to prevent sewage from discharging from the Overflow Structure. 3. Sydney Water installed a second boom across Toongabbie Creek during the course of the day about five metres downstream of the Overflow Structure. 4. The sewage discharge continued until Sydney Water re-activated the power supply at the Pumping Station and deployed one electric pump, at around 6.00pm on 22 October 2018. 23 October 2018 1. Sewage discharge from the Overflow Structure into Toongabbie Creek resumed again during the morning peak at around 8.00am on 23 October 2018, while four temporary diesel pumps and one electric pump were operating. The sewage discharge ceased at about 9.35am when a second electric pump was deployed. 2. Later in the morning of 23 October 2018, Sydney Water deployed a pumping arrangement to pump sewage out from the affected areas of Toongabbie Creek slightly downstream of the Overflow Structure into tankers, to be discharged into a sewer at Boundary Road, Northmead. This arrangement was operational until around 5.00pm on 25 October 2018. 3. A sewage discharge occurred again that evening between 8.30pm and 9.35pm, when a strainer blockage caused one of the temporary diesel pumps to fail. The discharge ceased at about 9.35pm when the failed pump was returned to service. 24 October 2018 1. No discharges occurred on 24 October 2018 as the capacity of the four temporary diesel and two electric pumps was sufficient to divert peak dry weather sewage inflows from the Pumping Station. 26 and 27 October 2018 1. Between about 7.57pm and 8.34pm on 26 October 2018, sewage was discharged from the Overflow Structure into Toongabbie Creek. Two tankers were diverted to pump sewage out of Toongabbie Creek. 2. At about 10.40am on 27 October 2018, sewage was again discharged from the Overflow Structure into Toongabbie Creek. At around 12.10pm, Sydney Water installed sandbags around the Overflow Structure to contain the sewage discharge. 3. Sydney Water identified that the sewage discharges on 26 and 27 October 2018 were caused by sewage seeping through gaps in the "stop boards" installed in the Overflow Structure "weir wall" (being below the designed overflow level of the weir crest level), into the overflow pipe, and then into Toongabbie Creek. The sewage seeped through the gaps in the stop boards during the peak evening and morning sewage flow. 4. By around 1.15pm on 27 October 2018, Sydney Water had repaired the defective part of the Overflow Structure by resetting the stop boards and sealing gaps between the stop boards and the "chamber wall" with a seal product to prevent leaks. No further sewage seepage flowed through the Overflow Structure weir wall after the repairs. 5. Sydney Water self-reported the overflows on 26 to 27 October 2018 to the EPA. The Wet Weather Discharge, First Discharge, and Second Discharge 1. A summary of the approximate sewage discharges that occurred from the Overflow Structure into Toongabbie Creek between the Incident on the morning of 21 October 2018 and the cessation of all sewage discharges from the Overflow Structure on 27 October 2018 is set out below. This summary includes the Wet Weather Discharge (that occurred for approximately eight and a half hours prior to the First Discharge) which was permitted by EPL 378 and is not the subject of these proceedings. Date Time Total duration Volume (litres) Discharge not the subject of these proceedings – Wet Weather Discharge 21.10.2018 07:22 – 16:00 8 hours 38 minutes Approx. 8,600,000 Discharges the subject of these proceedings – First Discharge 21.10.2018 16:00 – 23.59 10 hours Approx. 1,900,000 22.10.2018 00.00 – 02:00 22.10.2018 08:00 – 18:00 10 hours 590,972 23.10.2018 08:00 – 09:35 1 hour 35 minutes 115,761 23.10.2018 20:30 – 21:35 1 hour 5 minutes 158,039 Estimated total volume of the First Discharge: Approx. 2,764,772 Discharges the subject of these proceedings – Second Discharge 26.10.2018 19:57 – 20:34 37 minutes 5,572 27.10.2018 10:40 – 13:15 2 hours 35 minutes 29,978 Estimated total volume of the Second Discharge: 35,550 Estimated total volume of the First Discharge and the Second Discharge: Approx. 2,800,322 1. In summary, approximately 8,600,000 litres of sewage was discharged from the Overflow Structure between 7.22am and 4.00pm on 21 October 2018 during the Wet Weather Discharge. 2. A further approximately 2,800,322 litres of sewage was discharged from the Overflow Structure after 4.00pm on 21 October 2018 until cessation at around 1.15pm on 27 October 2018. Of that 2,800,322 litres, approximately 2,764,772 litres of sewage was discharged from the Overflow Structure during the First Discharge between 4.00pm on 21 October 2018 and around 9.35pm on 23 October 2018, when there was insufficient capacity to divert the sewage inflow away from the Pumping Station. This is the subject of the First Offence. The subject of the Second Offence was the 35,550 litres of sewage that was discharged from the Overflow Structure during the Second Discharge between around 7.57pm on 26 October 2018 and around 1.15pm on 27 October 2018, when there were gaps in the stop boards in the Overflow Structure. These discharges are the subject of the Offences because they occurred during "dry weather" and were therefore not permitted under EPL 378. Consequences of the Offences EPA inspections 1. EPA officers attended the Pumping Station and Overflow Structure at various times during the discharges on 22, 23, and 24 October 2018, and observed the effects of the sewage discharge into Toongabbie Creek. It was recorded that there was low flow in Toongabbie Creek on all three days. The officers took timed photographs and included descriptions at each inspection. 2. On 22 October 2018, EPA officers observed that there was turbid and greyish liquid being discharged from the Overflow Structure forming a light brown-greyish plume about 10m wide in Toongabbie Creek, which extended about 20m downstream. There was a moderate ambient sewage odour present in the air. On 23 and 24 October 2018 there was no sewage being discharged, but it was observed that the creek water was turbid and brown in colour. 3. On 22 October 2018, EPA officers observed rags and toilet paper caught in the riparian vegetation of Toongabbie Creek. Wet wipes, toilet paper and other sewage solids remained on the bank and in Toongabbie Creek up to about five metres directly downstream of the Overflow Structure on 23 October 2018. By 24 October 2018, the larger sewage solids had been removed from the bank of Toongabbie Creek, however a fine layer of sewage solids was visible on the substrate for about five metres downstream of the Overflow Structure. 4. On both 23 and 24 October 2018, EPA officers observed that surface scum was present on the water behind the booms. Sampling 1. Sydney Water carried out water sampling at up to 11 sites along Toongabbie Creek and Parramatta River (including at sites upstream of the Overflow Structure) about twice daily from the morning of 21 October 2018 over the days following the Incident. The EPA also conducted water sampling both upstream and downstream of the Overflow Structure discharge point. 2. Water sampling results indicated: 1. Samples at control sites upstream of the Overflow Structure on Toongabbie Creek, and on Darling Mills Creek, had low levels of faecal coliforms and either no detected or very low concentrations of ammonia; 2. Samples of sewage discharging directly out of the Overflow Structure had very high levels of faecal coliforms and a high concentration of ammonia; and 3. Samples at sites up to approximately 920m downstream of the Overflow Structure had very high levels of faecal coliforms, and elevated concentrations of ammonia relative to the control sites. Sydney Water's actions 1. In the aftermath of the Incident, Sydney Water implemented an "interim bypass pumping solution" to mitigate the discharges from the Overflow Structure, which involved the use of five electric pumps; six temporary diesel pumps (primarily operating on a standby basis); tankering; and the removal of the existing Pumping Station superstructure and other infrastructure. 2. From 22 October 2018, Sydney Water progressively installed aerators into Parramatta River to improve dissolved oxygen levels. Sydney Water also utilised a tanker to aerate the water by pumping water from the upstream side of a weir on Parramatta River and blasting it downstream. 3. From 22 October 2018, Sydney Water installed signage at points on both banks of Parramatta River to warn the public of sewage contamination, and by 24 October 2018, Sydney Water had installed signage on the bank of Toongabbie Creek near the Pumping Station and at further points along Parramatta River riverfront. 4. To reduce the risk of future overflows Sydney Water designed, built and commissioned an "interim pumping station" to replace the interim bypass pumping solution until the permanent replacement pumping station can be constructed. Construction is estimated to commence in 2021. Environmental harm Actual environmental harm 1. The parties agree that both the First Discharge and the Second Discharge, being the subject of the Offences, caused actual harm to Toongabbie Creek and Parramatta River as a result of approximately 2,800,322 litres of sewage being discharged from the Overflow Structure. 2. The nature of the actual harm was the introduction of sewage into Toongabbie Creek and Parramatta River which resulted in: 1. A change to the chemical condition of the waters through the introduction of the toxicant ammonia, being a product of human and animal waste, that at increased concentration levels is known to be toxic to aquatic organisms; 2. A change to the chemical condition of the waters through a reduction in dissolved oxygen concentrations, that at decreased concentration levels is known to be harmful to fish and other aquatic organisms (noting further reductions were prevented through the use of aerators in Parramatta River); 3. A change to the biological condition of the waters through the introduction of faecal coliform bacteria; and 4. The introduction of solid sewage material into Toongabbie Creek and a subsequent change to the visual clarity of the water in Toongabbie Creek. 1. The parties agree that the actual harm extended from the discharge point of the Overflow Structure in Toongabbie Creek approximately 720m downstream (into Parramatta River). The duration of actual harm lasted until 29 October 2018. Likely environmental harm 1. The parties agree that although approximately 8,600,000 litres of sewage was discharged into the receiving environment during the Wet Weather Discharge, and that the First Discharge and the Second Discharge would likely have further impacted the environment, by: 1. Increasing consumption of oxygen and further suppressing dissolved oxygen concentration which would have a negative effect on the survival rate of aquatic biota including fish and macroinvertebrates; 2. Extending the duration of low dissolved oxygen in Parramatta River which would have a negative effect on the survival rate of aquatic biota including fish and macroinvertebrates; and 3. Harming the macroinvertebrate community at specific sites, causing decline in populations and loss of macroinvertebrate diversity in the upper reach of Parramatta River that is likely to negatively affect the health of Parramatta River given the macroinvertebrate community is a key component of the river ecosystem. Potential environmental harm 1. The parties agree that the potential environmental harm caused by the First Discharge and the Second Discharge includes actual harm caused by the sewage discharges that cannot be specifically attributed to the discharges the subject of the Offences (as opposed to the Wet Weather Discharge which is not the subject of these proceedings). In this respect, approximately 300 fish died as a result of the sewage discharges that occurred after the Incident. The parties agree that the extent of actual harm to fish may have been reduced had the sewage discharges not included the First Discharge and the Second Discharge, as dissolved oxygen levels would likely have recovered to levels that sustain aquatic organisms more quickly. 2. The First Discharge and the Second Discharge also had the potential to harm human health by exposing recreational users of Parramatta River to raw sewage (where the presence of faecal coliforms can indicate the potential presence and associated risks arising from pathogens in the water). 3. On 23 October 2018, despite visible warning signs, two separate recreational users of Parramatta River were identified and warned of the recent sewage discharges by EPA officers during an inspection, in areas of Parramatta River which appeared to be impacted by the sewage discharges. 4. On 25 October 2018, Sydney Water released a joint media statement with Western Sydney Local Health District advising the community to avoid recreational activities in Parramatta River between Northmead and Silverwater Bridge due to a potential risk to health from sewage pollution. 5. On 24 October 2018, a canoe polo event which was scheduled to be held on Parramatta River on Sunday, 28 October 2018 was cancelled as a result of elevated ecoli levels in the river. Further evidence 1. Ms Demo, Head of Network Regional Operations and Maintenance at Sydney Water, deposed to the characteristics of the System and the Pumping Station and that there was an extensive approval process involved to upgrade the Pumping Station which had commenced in 2017 (prior to the Incident). Ms Demo noted the importance of obtaining Independent Pricing and Regulatory Review Tribunal ('IPART') approval for capital expenditure such as the upgrade of the Pumping Station. 2. Ms Demo also deposed to the actions taken by Sydney Water following the Incident, to investigate and respond to the Incident. She provided particular details about the safety constraints faced by Sydney Water when responding to the Incident (stemming from concerns regarding the stability of the Pumping Station and surrounding ground), which impacted the responsive actions that could be undertaken by Sydney Water. 3. Mr Fairbairn, Head of Wastewater and Environment at Sydney Water, deposed to Sydney Water's organisational approach to the management of environmental risk, including key management frameworks, policies and procedures, and auditing. 4. Mr Fairbairn deposed that Sydney Water recognised and accepted that environmental harm was caused, and that it had "fallen short of what is reasonably required to appropriately protect the environment". Mr Fairbairn expressed remorse and contrition on behalf of Sydney Water, and also referred to a letter written by Sydney Water's Managing Director, Mr Roch Cheroux, in which he expresses his "sincere regret" about Sydney Water's response to the collapse of the dry well in the Pumping Station. 5. Mr Fairbairn sought to make a distinction between the Offences the subject of these proceedings and other incidents that have been the subject of other court proceedings, because these proceedings "resulted from" the "catastrophic and unprecedented failure of the Pumping Station". He deposed that these Offences did not represent "habitual conduct" of Sydney Water, and that Sydney Water had a "track record" of cooperating with regulatory authorities including the EPA. 6. Mr Fairbairn noted that Sydney Water had taken immediate steps to mitigate environmental harm arising from the collapse of the dry well in the Pumping Station, as well as further steps to ensure continued and improved environmental performance. This included: 1. Undertaking a manual inspection of asset elements at 85 pumping stations which were constructed in the same manner as the Pumping Station at the System, and rating the condition of asset elements; 2. Initiating the rectification of those asset elements at the System rated as most in need of rectification (noting these asset elements have either been rectified, are the subject of approval for rectification, or will be rectified as soon as practicable); and 3. Implementing new processes for the clean-up of overflows and undertaking associated staff training, which have resulted in an "85% reduction in the average time to manage and close out pollution incidents over the last 24 months." 1. Finally, Mr Fairbairn outlined a number of community projects undertaken by Sydney Water which were said to illustrate Sydney Water's broader commitment to water quality and protecting the environment from harm. This included: upgrading and installing new infrastructure to reduce environmental impacts of operations; undertaking education programs relating to waterway systems and current water issues; supporting initiatives to reduce the use of plastic bottles; and undertaking river rehabilitation initiatives. Principles of sentencing 1. In imposing proportionate and appropriate sentences for the Offences, the instinctive synthesis process of sentencing necessitates the Court's consideration of the objective circumstances of the Offences and the subjective circumstances of the offender, Sydney Water: Veen v R (1979) 143 CLR 458; [1979] HCA 7 at 490; Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 ('Veen (No 2)') at 472. This process requires the Court to identify and weigh the significance of the factors relevant to sentence. 2. The Court must have regard to the legislative framework applicable to sentencing in relation to the Offences, which includes the purposes of sentencing as contained within s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act'); any aggravating, mitigating and other factors of relevance as set out in ss 21A and 22 of the Sentencing Act; the objects within s 3 of the POEO Act; and matters to be taken into account as required by s 241 of the POEO Act. 3. The purposes for which the Court may impose a sentence under s 3A of the Sentencing Act that are most relevant to the Offences are: "… (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, … (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to … the community." 1. Section 21A of the Sentencing Act sets out a number of aggravating and mitigating factors which the Court is to take into account when sentencing. An aggravating factor identified by the prosecutor as relevant in these proceedings is s 21A(2)(g): "the injury, emotional harm, loss or damage caused by the offence was substantial". 2. The mitigating factors in s 21A(3) that are most relevant in these proceedings include: "(a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, … (i) the remorse shown by the offender for the offence, but only if— (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), …" 1. A prosecutor carries the onus of proving any aggravating factors beyond reasonable doubt, while an offender carries the onus of proving any mitigating factors on the balance of probabilities for the purposes of sentencing: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. In this respect, although a plea of guilty entails acceptance that the elements of an offence have been proved beyond reasonable doubt, other facts taken into account during sentencing must be established: R v O'Neill [1979] 2 NSWLR 582 at [588]; Duffy v R [2009] NSWCCA 304 at [21]. 2. For offences under the POEO Act, the Court is also to take into account the sentencing considerations found in s 241(1) of that Act (so far as they are relevant), namely: … (a) The extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) The practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) The extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) The extent to which the person who committed the offence had control over the causes that gave rise to the offence, … Objective seriousness of the Offences 1. The objective gravity or seriousness of the Offences committed by Sydney Water is a primary factor to be considered in determining the appropriate sentences. This requires the Court to take into account the nature of the Offences, including: the maximum penalty; the extent of harm caused to the environment by the commission of the Offences and the extent to which this harm was reasonably foreseeable by Sydney Water; the state of mind of Sydney Water including its reasons for committing the Offences; Sydney Water's control over the causes that gave rise to the Offences; and whether practical measures were available to prevent, control, abate or mitigate the harm caused to the environment by the commission of the Offences. Nature of the Offences 1. Section 120 of the POEO Act states: "(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." 1. The offence of water pollution plays an important role in giving effect to the objects in s 3 of the POEO Act, which include to protect the quality of the environment and to prevent pollution of it. As Preston CJ of LEC observed in Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 ('Baiada') at [23]: "[p]ollution of waters is a result offence where the proscribed result directly undermines the object of the Protection of the Environment Operations Act." 2. The prohibitions on pollution in the POEO Act are moderated by the licencing regime in the legislation, which allows holders of environment protection licences to undertake activities that would otherwise constitute pollution (based on an assessment by the relevant regulator). Relevantly, the conditions of Sydney Water's EPL 378 allow sewage discharges in specific circumstances (such as the approximately 8,600,000 litres constituting the Wet Weather Discharge). By polluting waters, other than in accordance with the conditions of EPL 378 that were assessed and imposed by the regulator, Sydney Water undermined the objects of the POEO Act and the statutory scheme that prohibits pollution unless in accordance with an environment protection licence. Maximum penalty 1. The maximum penalty for an offence against s 120 of the POEO Act in the case of a corporation is $1,000,000. This is indicative of the seriousness of the offence as expressed by Parliament. In sentencing Sydney Water for the Offences it has committed, the Court is required to assess the relative seriousness of the Offences against the worst case for which the maximum penalty is provided: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. Extent of harm to the environment 1. The harm caused, or likely to be caused, to the environment by the commission of the Offences is relevant to determining the objective seriousness of the Offences and Sydney Water's culpability: s 241(1)(a) of the POEO Act; ss 21A(2)(g) and 21A(3)(a) Sentencing Act. 2. "Harm" is defined in the Dictionary to the POEO Act to include: "any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution." 3. "Pollution" includes "water pollution", and "water pollution" or "pollution of waters" is relevantly defined in the Dictionary to the POEO Act to include: 1. introducing any matter into waters so that the physical, chemical or biological condition of the waters is changed; or 2. placing in or otherwise introducing into waters any matter that makes, or is likely to make, the waters unclean, noxious, poisonous, impure, detrimental to the health, safety, welfare of persons, poisonous or harmful to aquatic life or fish. 1. In relation to environmental offences, the concept of harm is broad and includes both actual harm and potential harm. In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 ('Waste Recycling'), Preston J stated: "[145] Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. [146] Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. [147] Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously. [148] The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701; 39. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 NSW. [149] The fact that the environment harmed by the offender's conduct was already disturbed or modified is not a mitigating factor: State Pollution Control Commission v White Wings Ltd (unreported, Land and Environment Court NSW, Bignold J, No 50129 of 1991, 1 November 1991) at p 4; Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269 at [14]; Environment Protection Authority v Coggins (2003) 126 LGERA 219 at [18]; Environment Protection Authority v Abigroup Contractors Pty Ltd [2003] NSWLEC 342 (15 December 2003) at [24]; Environment Protection Authority of New South Wales v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006) at [26]." 1. The agreed facts before the Court (as set out at [55]-[63] above), disclose that the parties agree in relation to the existence of actual, likely and potential harm caused both to the environment and the community by the commission of the Offences the subject of these proceedings. The extent of that harm, however, is a matter of controversy. 2. In making the following comments, I am conscious that the First Discharge and the Second Discharge constitute, and the Court is considering, two separate charges. However, for concision and consistent with the approach in the statement of agreed facts, for present purposes, the harm caused by the commission of the Offences is considered together. Consideration of receiving environment 1. The prosecutor submits that the fact the receiving environment had likely already been harmed by the Wet Weather Discharge cannot be considered a mitigating factor: Environment Protection Authority v Ecolab Pty Limited [2002] NSWLEC 206; (2002) 123 LGERA 269 ('Ecolab') at [14]; Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 ('EPA v Sydney Water 2019') at [253]. While initially characterising the fact that the receiving environment had already been harmed as "irrelevant", in oral submissions the prosecutor accepted that the state of the receiving environment was relevant to the Court's assessment of the harm caused by the Offences (Tcpt, 11 February 2021 p 23(33-42). 2. Sydney Water submits that while Ecolab indicates the condition of the receiving environment is not to be taken into account in mitigation, Cowdry J held it was relevant to an assessment of harm. Sydney Water notes it is not being prosecuted for the harm to the environment that was caused by the Wet Weather Discharge, which polluted Toongabbie Creek near its confluence with Parramatta River with approximately 8,600,000 litres of sewage. Sydney Water submits that the appropriate approach in the circumstances is to adopt the approach of Pain J in Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 ('EPA v Sydney Water 2020') at [56], and ask whether the First Discharge and the Second Discharge made the "already compromised environment any worse", noting that "[t]o do otherwise is to assess sentencing on the basis of circumstances not the subject of the charge". 3. I accept that the fact Toongabbie Creek and Parramatta River were polluted by the Wet Weather Discharge does not mitigate against the objective culpability of Sydney Water's conduct in commissioning the Offences: Ecolab at [14]; see also EPA v Sydney Water 2019 at [253] and cases cited therein. 4. I accept Sydney Water's submissions that the appropriate approach to assessing the extent of harm is to compare the receiving environment before and after the pollution that is the subject of the offence: EPA v Sydney Water 2020 at [56]. I consider that the fact Toongabbie Creek and Parramatta River had already been harmed by the Wet Weather Discharge is relevant, and that the correct comparison when assessing the extent of the harm caused by the Offences is between the condition of the receiving environment at 4.00pm on 21 October 2018 when the First Discharge started and the condition of the receiving environment after the First Discharge and then the Second Discharge. Characterisation of harm 1. The prosecutor submits that the extent of the harm to the environment and the community that was caused by the Offences was substantial, while noting that the extent of the harm caused by the First Discharge was greater than the harm caused by the Second Discharge. The prosecutor submits that the agreed harm extended over a "significant distance" and lasted over a week. The prosecutor also notes the extent of the clean-up that was required to be undertaken, including manual cleaning and physical obstructions and installations in Toongabbie Creek and Parramatta River. 2. In oral submissions, the prosecutor highlighted the relatively large volume of sewage that was discharged during the Offences, in comparison to the volumes that have been discharged in previous pollution events involving Sydney Water and considered by judges of this Court. The prosecutor also highlighted similarities between the harm caused by the Offences and the characteristics of harm considered by Preston J in Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 ('EPA v Sydney Water 2015') at [62], in relation to the nature of the pollutant, duration of discharge and interference with public amenity and enjoyment. 3. Sydney Water submits that Court could not be satisfied that the extent of the harm caused was substantial. As the First Discharge and the Second Discharge occurred in an "already lawfully polluted" receiving environment following the Wet Weather Discharge, Sydney Water submits that it is not possible to quantitatively or qualitatively identify the harm caused to the environment as a result. 4. In contrast to the prosecutor, Sydney Water characterises the extent and distance of the harm caused as "relatively limited". Sydney Water sought to differentiate the Offences from previous proceedings, noting that the Offences resulted in harm lasting for days and over hundreds of metres, in comparison to harm lasting weeks and extending over many kilometres in previous proceedings. 5. I have considered previous cases relevant to the characterisation of harm to the environment. In EPA v Sydney Water 2015, Preston J assessed the nature of the pollutant, the duration of the pollution event, the difference in the marine environment that received the pollutant (being near a cliff face) compared to the marine environment that ought to have received the pollutant (being the deep ocean), and the interference with public amenity and enjoyment, and found that the harm caused by the pollution event was substantial: at [62]. A similar finding was made by Pepper J in EPA v Sydney Water 2019, who, while accepting the receiving environment was already modified and degraded, found that the extent of the environmental harm caused, or likely to be caused, was substantial (and thus an aggravating factor for the purposes of s 21A(2)(g) of the Sentencing Act) on the basis of the characteristics of the pollution caused by the offences: at [259]-[263]. 6. Other cases have specifically considered harm in circumstances where a prior pollution event has occurred (which is not the subject of the offence). In EPA v Sydney Water 2020, Pain J concluded that in circumstances where there had been a lawful pre-existing pollution event, the prosecutor had not established beyond reasonable doubt the likelihood of substantial "increased harm to the environment and greater risk to human health" as a result of the offence: at [61]. Pepper J came to a similar conclusion in Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 ('EPA v Sydney Water 2021'), finding that absent specific evidence adduced by the EPA of the extent of the actual and likely harm caused by the conduct constituting the offence, it could not be found beyond reasonable doubt that the actual and likely harm to the environment was substantial: at [157]. 7. Considering these cases, it is clear that whether the harm (in particular the extent of the harm) caused by the Offences is substantial, depends on the factual evidence available about the characteristics of the pollution, and whether this evidence establishes the extent of the harm to the required standard of proof. Taking into account the agreed facts, I am satisfied that: 1. The receiving environment of Toongabbie Creek and Parramatta River was already polluted at the time of the First Discharge and the Second Discharge as a result of the Wet Weather Discharge introducing approximately 8,600,000 litres of sewage into the water; 2. Each of the First Discharge and the Second Discharge caused further pollution of the waters of Toongabbie Creek and Parramatta River through the introduction of 2,800,322 litres of sewage; 3. This resulted in actual, potential and likely environmental harm including changes to the chemical and biological condition of the waters of Toongabbie Creek and Parramatta River; 4. Without the First Discharge and the Second Discharge, the harm caused by the Wet Weather Discharge may have been reduced. In this respect, the concentration of ammonia may have been lower and therefore less toxic to aquatic organisms, and dissolved oxygen concentrations may have been higher and recovered more quickly, causing less harm to fish and other aquatic organisms. 1. However, I am not satisfied that the evidence about the extent of the harm caused by the First Discharge and the Second Discharge establishes beyond reasonable doubt that this harm was substantial. Further, I consider that the harm caused by the Second Discharge is not as serious as the harm caused by the First Discharge. 2. In circumstances where the receiving environment has already been polluted, the attribution of harm between the Wet Weather Discharge and the First Discharge and the Second Discharge (which involved the addition of approximately a further third in volume of sewage) is difficult. As set out in the statement of agreed facts, the fish kill could not be attributed between the discharges the subject of the Offences and the Wet Weather Discharge but actual harm "may have been" reduced without the First Discharge and the Second Discharge. I consider that this uncertainty militates against a finding that the harm caused by the First Discharge and the Second Discharge was substantial. 3. Moreover, I consider that while some evidence of harm has been provided by the parties in the statement of agreed facts, it is not sufficiently specific to the First Discharge and the Second Discharge and thus it cannot be found beyond reasonable doubt that this harm was substantial: EPA v Sydney Water 2021 at [157]. 4. Finally, undertaking an assessment similar to that in EPA v Sydney Water 2015, I consider that the nature of the pollutant (where the First Discharge involved approximately 2,764,772 litres of sewage and the Second Discharge involved 35,550 litres of sewage), the duration of the discharge events (being a cumulative total of 22 hours and 40 minutes for the First Discharge and 3 hours and 12 minutes for the Second Discharge), the receiving environment (noting Sydney Water is able to discharge sewage from the Overflow Structure during wet weather events), and the interference with public amenity and the environment (where there was potential harm to recreational users of Toongabbie Creek and Parramatta River), support my findings that while harm was caused, it was not substantial. 5. This finding is relevant in relation to both s 241(1)(a) of the POEO Act and that s 21A(2)(g) of the Sentencing Act. 6. I note that the actual, likely and potential harm caused by the First Discharge and the Second Discharge was likely not as serious as that caused by the Wet Weather Discharge, but as stated above, the Wet Weather Discharge is not the subject of these proceedings. State of mind and reasons for committing the Offences 1. Although the state of mind of an offender at the time of the commission of an offence may make a strict liability offence under s 120(1) of the POEO Act objectively more serious if committed intentionally, recklessly or negligently, Sydney Water is not alleged to have conducted itself in such a manner. Similarly, while an offence that is carried out for financial gain may be of increased seriousness, the prosecutor does not allege that Sydney Water had a "reason", such as financial gain, for committing the Offences. Control over the causes that gave rise to the Offences 1. The extent to which Sydney Water had control over the causes which gave rise to the Offences is a factor relevant to the objective seriousness of the Offences. The parties agree that the First Discharge and the Second Discharge (that gave rise to the Offences) were caused by "the collapse of the inner wall of the Pumping Station". For clarity, Sydney Water does not concede the antecedent cause of the collapse of the inner wall of the Pumping Station, if that was to be relied upon by the prosecutor. 2. The prosecutor submits that as owner, occupier and user of the Pumping Station, Sydney Water was the only person who had legal, physical and technical ability to undertake inspections that might have resulted in the identification of the degraded condition of the Pumping Station and the undertaking of appropriate remedial action that may have averted the collapse of the inner wall of the Pumping Station. 3. While not obvious from its written submissions, in oral submissions Sydney Water accepted that it had control over the cause of the "incident", being the collapse of the inner wall of the Pumping Station. 4. Sydney Water submits that a further cause which gave rise to the First Offence was the insufficiency of Sydney Water's pumping capacity, as, in its submission, the First Offence was not "inevitable" and could have been avoided if enough pumping capacity had been provided to divert sewage inflows away from the Pumping Station. Sydney Water also submits that its control over pumping capacity was mitigated by safety considerations (including FRNSW advice) that regulated the use of pumps. 5. The prosecutor refuted Sydney Water's suggestion that insufficiency in pumping capacity was a cause of the First Offence, on the basis that the small retention capacity and high volume of sewage meant that, even with more pumping and tankering capacity, Sydney Water "just would not have been able" to avert the First Discharge: Tcpt, 11 February 2021, p 34(46). 6. Sydney Water further submits that a cause which gave rise to the Second Offence was sewage seeping through gaps in the stop boards that had been placed at the Overflow Structure. Sydney Water accepted that the placement of the stop boards was within the control of Sydney Water. 7. I find that Sydney Water had control over the failure of the Pumping Station, as the owner and occupier of the System Pumping Station. As the collapse of the inner wall of the Pumping Station caused the First Discharge and the Second Discharge which gave rise to the Offences, as agreed by the parties, I take this control of the cause of the Offences into consideration in imposing a penalty. 8. In relation to the First Offence, it is clear that Sydney Water had control over the response to the failure of the Pumping Station including the provision of pumping capacity (through tankering and otherwise). While I take into consideration that there may be some mitigating circumstances due to safety constraints on the utilisation of the pumping capacity, I find that Sydney Water had control over pumping capacity and that this was a cause of the First Offence. 9. In relation to the Second Offence, I find (as accepted by Sydney Water) that the placement of the stop boards was within the control of Sydney Water, and was a cause of the Second Offence. Foreseeability of the risk of harm to the environment 1. The extent to which Sydney Water could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the Offences is a relevant objective circumstance in sentencing: s 241(1)(c) of the POEO Act. 2. The prosecutor submits that even if the Court accepts Sydney Water's submission that the collapse of the inner wall and failure of the Pumping Station was "catastrophic and unprecedented", that does not lead to a conclusion that the risk of harm to the environment in the event of a failure of the Pumping Station was unforeseeable. The prosecutor provides a number of explanations for its position. 3. First, it is an agreed fact that the Pumping Station had a maximum pumping capacity of 628 litres per second and a wet well detention time of only 15 minutes during peak dry weather flows, which was "drastically" below Sydney Water's standard required minimum four hour response time for responding, implementing contingency measures and containing emergency situations. 4. Secondly, the prosecutor notes that it is an agreed fact that Sydney Water had no feasible contingency plan to prevent dry weather overflows if the Pumping Station failed, due to the fact that only 15 minutes of sewage flow could be held in the wet well of the Pumping Station and its catchment storage. In those circumstances, the prosecutor submits that it was foreseeable, that in the event the pumps failed during peak dry weather flows, a discharge of sewage into the environment would occur (regardless of what was the ultimate cause of the pumps' failure). 5. Thirdly, the prosecutor submits that the affidavit of Ms Demo illustrates that peaks in dry weather flows after wet weather were a "typical phenomenon" of the System, meaning that overflows during dry weather (after wet weather) were foreseeable. 6. Sydney Water submits that, although the prosecutor points to the lack of a "feasible contingency plan to prevent dry weather overflows if the Pumping Station failed", as set out in the affidavit of Ms Demo, Sydney Water had already commenced the process to replace the Pumping Station in 2017 but was constrained in its capacity to obtain funds to undertake capital expenditure by IPART. Sydney Water suggests this "highlights the pressure that is brought to bear on organisations like Sydney Water to strive for further and greater 'efficiencies' without regard to the costs beyond the dollar value". 7. I note that for harm to be foreseeable, the precise cause of an incident is not required to be foreseen: Baiada at [31]-[32]. In that case, the Court found that it was not necessary to foresee the defective welding of a fitting on an effluent pipe, but rather that any loss of integrity of the effluent pipe would (having regard to the inherent characteristics of the pipe and the fact there was a downhill watercourse) pollute the watercourse. 8. Given this, Sydney Water is not required to reasonably foresee the precise cause of the collapse of the inner wall of the Pumping Station (noting the cause remains an issue of contention between the parties and is not conceded by Sydney Water), or indeed that the inner wall would collapse causing the Pumping Station to fail. Rather, the issue is whether Sydney Water could have reasonably foreseen that harm would occur as a result of a failure of the Pumping Station. 9. I find, for the reasons submitted by the prosecutor, that it was reasonably foreseeable to Sydney Water that harm would occur as a result of a failure of the Pumping Station during peak dry weather flows causing the discharge of sewage. As noted above, Sydney Water is the owner and occupier of the System and has an extensive understanding of the nature of the System and the characteristics of the Pumping Station. 10. Sydney Water had already undertaken some steps to improve reliability of pumping infrastructure to address the foreseeable risks arising as a result of the detention time issue at the Pumping Station, prior to the Incident. The subsequent manual inspection of asset elements at 85 pumping stations which was taken in response to the Incident is an example of the precautions that a reasonable person in Sydney Water's position could have taken in response to foreseeable risks. 11. Sydney Water's submission regarding constraints on its capacity to fund capital expenditure does not change my finding about foreseeability. I consider this matter in further detail below in relation to practical measures. Practical measures to avoid harm to the environment 1. The prosecutor initially submitted that cracking of the 1965 Rising Main caused the collapse of the inner wall and the failure of the Pumping Station, and further that if Sydney Water had provided direct access to the 1965 Rising Main for inspections, and then conducted those inspections, the failure of the Pumping Station could have been prevented. While Sydney Water does not accept the prosecutor's position in relation to the cracking of the 1965 Rising Main, at the hearing, Sydney Water conceded there were practical steps that it could have taken to inspect the Pumping Station, where this included inspection of the rising mains (Tcpt, 11 February 2021, p 36(50)-37(2)). As a result, the prosecutor did not press the cause of the collapse of the inner wall at the hearing. 2. I find that there were practical measures which Sydney Water could have taken, being inspection of the Pumping Station and rising mains, which could have prevented the harm that arose from the failure of the Pumping Station. 3. As noted above, Sydney Water made submissions about the constraints on its capacity to fund capital expenditure, which it submits go to the practical measures that Sydney Water can take to maintain its infrastructure. This was based on the evidence of Ms Demo, who also deposed as to the extensive approval process Sydney Water was required to undertake prior to implementing practical measures, for example, the upgrade of the Pumping Station. I understand that there are often financial pressures on entities (both private and public) which may impact whether and when they undertake practical measures that would avoid harm. However, I do not give Sydney Water's submission significant weight in circumstances where those practical measures were available to Sydney Water. Conclusion on objective seriousness 1. The prosecutor submits that the Offences each fall within the medium range of objective seriousness, having regard to the circumstances that led to the collapse of the inner wall and failure of the Pumping Station; the volume of sewage that was discharged; the foreseeability of the harm occurring; the temporal and special features of the harm; and the extent of Sydney Water's control over the harm (albeit recognising that the Offences were not committed intentionally, recklessly or negligently). 2. Sydney Water supports the submission that the Offences were within the medium range of objective seriousness, however for different reasons to the prosecution, including that the events were limited spatially and temporally, the foreseeability and control of the offending conduct, and the offending conduct in the context of the overall Incident. In oral submissions, Sydney Water submitted that the Second Offence must be considered at a lower level of objective seriousness than the First Offence, which I take to mean a mid to low level of objective seriousness. 3. Conscious that the task in which the Court is engaged is one of instinctive synthesis and not what may otherwise be described as two-staged sentencing, and that an assessment of objective seriousness referable to a notional point on a spectrum of culpability, despite being a convenient shorthand descriptor, is not a necessary component of the sentencing task, I consider that, on account of the objective factors noted above, each of the Offences is at the mid-range of objective seriousness for offences of this kind. However, the Second Offence is of less objective seriousness within that range than the First Offence. Subjective circumstances 1. Within the boundaries set by the objective seriousness of the Offences, the Court may consider the subjective circumstances of Sydney Water, including: the need for deterrence; its pleas of guilty; its prior record of convictions; its remorse for the Offences; its good corporate character; the unlikelihood of reoffending; and its assistance to authorities. As the subjective circumstances are common in each offence, they are considered together. General and specific deterrence General deterrence 1. General deterrence is a principal consideration in the imposition of a penalty for environmental offences. The prosecutor submits that there is need for general deterrence, as the prohibition against water pollution is a critical aspect of the regulatory framework for environment protection established by the POEO Act. Sydney Water accepts that the prohibition of pollution is a critical aspect of the regulatory framework for environmental protection established by the POEO Act. 2. In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278, Preston J considered general deterrence in the context of environmental crime as follows: "[65] The sentence of the Court is an important denunciation of the conduct of the defendant. [66] The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby (1977) 1 NSWLR 594 at 597-598. [67] This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354; and Director General National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93]. [68] The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts." 1. I consider that there must be an element of general deterrence embedded in the determination of the appropriate sentences to be imposed on Sydney Water, to ensure that large-scale sewage utilities operate in a manner that does not harm the environment. Specific deterrence 1. The prosecutor further submits that there is a need for specific deterrence in this case, first, because Sydney Water continues to operate a large sewage network where there is ongoing risk of water pollution; and secondly, due to Sydney Water's history of prior convictions for environmental offences. 2. Sydney Water submits that there is no need for specific deterrence, first, because Sydney Water's senior officers have given unchallenged evidence that the Offences are "antipathetic" to Sydney Water's aims; secondly, because the Incident was "unprecedented" and therefore different to recent Sydney Water prosecutions; and thirdly, because "those with a vested interest in the health of the waterways" were impressed by Sydney Water's response to the Incident. 3. As an initial comment, and as indicated at the hearing, I give little weight to the submission that external stakeholders were impressed by Sydney Water's response. I accept the prosecutor's submission that specific deterrence is needed. I consider that Sydney Water's prior convictions, considered below, are relevant to the need for specific deterrence, and that the penalty imposed must serve to reinforce Sydney Water's responsibility to ensure that its activities are undertaken in a manner that does not result in pollution. Early pleas 1. Sydney Water entered pleas of guilty at the first reasonably available opportunity for each of the Offences. As such, Sydney Water is entitled to a discount that reflects the utilitarian value of the pleas having regard to their timing. Prior convictions 1. Prior convictions can be an aggravating factor, while a lack of prior convictions can be a mitigating factor in fixing where, within the boundaries set by the objective circumstances, the sentences for the Offences should lie: ss 21A(2)(d) and 21A(3)(e) Sentencing Act; R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [26]-[34]. In particular, previous criminal conduct may indicate that the Offences are indicative of continuing attitude of disobedience to the law or that Sydney Water has a propensity to reoffend (which may indicate more severe penalties should be imposed): Veen (No 2) at 477. 2. It is agreed that Sydney Water has a record of prior convictions for environmental offences. Some key elements of these prior convictions are summarised below. 1. In 1998, Sydney Water was convicted of contravening a condition of a pollution control licence as the result of a cliff face discharge at North Head Sewage Treatment Plant under the Pollution Control Act 1970 (NSW) and fined $100,000 plus the EPA's legal costs: Environment Protection Authority v Sydney Water Corporation [1998] NSWLEC 144; Environment Protection Authority v Sydney Water Corporation [1999] NSWLEC 60; 2. In 2000, Sydney Water was convicted of polluting waters with approximately 7,000 to 8,000 litres of aluminium sulphate when operating the West Camden Sewerage Treatment Plant contrary to the Clean Waters Act 1970 (NSW) ('Clean Waters Act') and fined $30,000 plus the EPA's legal costs: Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 80; 3. In 2000, Sydney Water was convicted of polluting waters in respect of a sewage overflow from a manhole in Helensburgh to Camp Creek contrary to the Clean Waters Act and fined $40,000 plus the EPA's legal costs: Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156; 4. In 2015, Sydney Water was convicted of polluting waters and breaching an environment protection licence condition in relation to an incident at the Malabar Waste Water Treatment Plant under the POEO Act, and ordered to pay $157,500 to the Environmental Trust and Randwick City Council, the EPA's legal costs, and to comply with a publication order: EPA v Sydney Water 2015; 5. In 2019, Sydney Water was convicted of two offences of polluting waters and one offence of breaching an environment protection licence condition in relation to an incident at the South Western Sydney Ocean Outfall Sewer under the POEO Act, and ordered to pay $269,500 to the Environmental Trust and Bayside Council, the EPA's investigation and legal costs, and to comply with a publication order: EPA v Sydney Water 2019; 6. In 2020, Sydney Water was convicted of polluting water and breaching an environment protection licence condition (in respect of EPL 378) in relation to a sewage incident in the Lane Cove River, North Epping, and ordered to pay $127,000 to NSW National Parks and Wildlife Service, an additional monetary penalty of $18,000 that included a moiety to the prosecutor, the EPA's investigation and legal costs, and comply with a publication order: EPA v Sydney Water 2020; and 7. In 2021, Sydney Water was convicted of breaching an environment protection licence condition and not complying with a clean-up notice under the POEO Act and ordered to pay $100,000 to Sutherland Shire Council, an $85,000 additional monetary penalty of which $42,500 was a moiety to the prosecutor, the EPA's investigation and legal costs, and comply with a publication order: EPA v Sydney Water 2021. 1. The prosecutor submits that Sydney Water's prior convictions are significant and include convictions for similar offences. In contrast, Sydney Water points to the evidence of Mr Fairbairn (in his affidavit described at [66]-[70] above) that the collapse of the dry well in the Pumping Station (and presumably the Offences) is of a different character to previous incidents involving Sydney Water. Further, as noted above, Mr Fairbairn deposes that the fact there were multiple previous incidents does not reflect the "habitual conduct" of Sydney Water. 2. I note that the present Offences were committed approximately 18 months after the offences in EPA v Sydney Water 2019, three months after the offences in EPA v Sydney Water 2020, and at a similar time to the offences in EPA v Sydney Water 2021. I note that while the causes and circumstances of the prior offences were different to the Offences, the nature of the environmental harm was similar in that they relate to the discharge of sewage into the natural environment. I consider that these prior convictions are suggestive of a continuing attitude of disobedience of the law, or a propensity to reoffend, by Sydney Water. Given this, it is appropriate to view the prior convictions as an aggravating factor. In forming this view, I take into account the statement in Veen (No 2) at 477: "… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences …" Remorse 1. While genuine remorse is a further factor in sentencing, s 21A(3)(i) of the Sentencing Act provides that remorse shown by an offender for an offence will only be a mitigating factor if: "(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)," 1. The existence of remorse is also relevant to the weight that needs to be given in sentencing to personal deterrence and the prospects of rehabilitation: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [116]. 2. Sydney Water, through the affidavit of Mr Fairbairn (at [66]-[70] above) accepted that the environment was harmed, and that Sydney Water's conduct had "fallen short of what is reasonably required to appropriately protect the environment". Further, Sydney Water "recognises and accepts that the pollution is not acceptable." Mr Fairbairn expressed remorse and contrition on behalf of Sydney Water in relation to its response to the collapse of the Pumping Station infrastructure and the pollution that occurred. Correspondence from Sydney Water's Managing Director, Mr Cheroux, reiterated Sydney Water's remorse and contrition. 3. Taking into account Mr Fairbairn's evidence, I find that Sydney Water has accepted responsibility for its actions, acknowledged the harm caused by its actions, and therefore has demonstrated genuine remorse for the commission of the Offences. Good character 1. The good character of an offender may be a mitigating factor in sentencing pursuant to s 21A(3)(f) of the Sentencing Act. Sydney Water submits that the Offences are "antipathetic" to Sydney Water's approach to the environment, and noted that it had: 1. Implemented detailed and rigorous systems to minimise the environmental impacts of its operations; and 2. Been involved in community programs which aim to improve the environment and educate about the environment. 1. Sydney Water provides evidence of its approach to the environment in the affidavits of Ms Demo and Mr Fairbairn. Mr Fairbairn deposed that Sydney Water "takes its environmental responsibility very seriously" and provides an extensive outline of the different environmental and community programs in which Sydney Water is involved (as noted above at [70]). I accept this illustrates Sydney Water's broader commitment to protecting the environment from harm. 2. On the basis of the evidence provided by Sydney Water, and while acknowledging that Sydney Water has a number of prior convictions for similar offences (as considered above), I find that Sydney Water is of good corporate character. Prospects of reoffending and rehabilitation 1. Both the likelihood of reoffending and prospects of rehabilitation are relevant to sentencing: ss 21A(3)(g) and 21A(3)(h) Sentencing Act. Taking into account the evidence of Mr Fairbairn and Ms Demo (in particular the further steps that have been undertaken to improve Sydney Water's environmental performance, Sydney Water's ongoing commitment to address and improve its environmental performance as part of its corporate strategy, and its response to any environmental incidents), and my consideration above, I find that Sydney Water's prospects of rehabilitation are good. This is a mitigating factor. 2. In relation to reoffending, I note that Sydney Water took steps to mitigate the harm caused by the Offences as well as to improve its environmental performance more generally. In particular, I note the evidence of Mr Fairbairn that there has been an 85% reduction in the average time taken to manage and close-out pollution incidents in last 24 months (that is, since December 2018). I accept this indicates that there is a lower likelihood of Sydney Water re-offending. However, on the basis of Sydney Water's prior convictions and the nature and characteristics of the System that Sydney Water manages, I do not find that Sydney Water is unlikely to reoffend. This is not a mitigating factor. Assistance to authorities 1. The prosecutor accepted that Sydney Water cooperated with the EPA at the time of the Offences and over the course of the EPA's investigation into the Offences. The prosecutor also noted that if an offender agrees to pay a prosecutor's costs voluntarily, this assistance to authorities may be recognised as a mitigating factor. 2. In his affidavit, Mr Fairbairn deposed that Sydney Water "at all times strives to cooperate with regulatory authorities including the EPA", and in relation to the Offences had endeavoured to ensure utmost cooperation throughout the reporting, response, and investigation of the collapse of the dry well in the Pumping Station. 3. Given this evidence, I find that Sydney Water provided assistance to law enforcement authorities for the purposes of s 21A(3)(m) of the Sentencing Act. Appropriate penalty Comparable cases 1. The ascertainment of a general pattern of sentences for similar offences assists in fair and reasonable sentencing. I have considered the penalties imposed in other cases when assessing the appropriate penalty for the Offences. Although each judicial decision will turn upon the facts unique to that case and will necessarily be subject to a variety of objective and subjective factors (Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71 at [45]), I note the Court should nonetheless seek to impose sentences which are consistent with any patterns of sentencing for like offences. 2. The prosecutor provided the Court with a table of comparable cases summarising the sentencing considerations and penalties imposed in each of the following decisions: 1. EPA v Sydney Water 2020; 2. Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 ('EPA v NSW 2019'); 3. EPA v Sydney Water 2019; 4. Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39; 5. Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76; 6. EPA v Sydney Water 2015; and 7. Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26. 1. The prosecutor also referred the Court to EPA v Sydney Water 2021 in written submissions. 2. In sentencing Sydney Water for each of the Offences it has committed, I have given close consideration to each of the above cases and their objective and subjective circumstances which led the sentencing judge in each matter to impose the various sentences (and I have referred to four of the cases at [97]-[98] above to which I have given particular consideration). I have also considered the summaries of other cases undertaken in a number of the cases to which I have been referred, including the summaries in EPA v Sydney Water 2021 at [223]-[224], EPA v Sydney Water 2020 at [103]-[106], and EPA v Sydney Water 2019 at [319]-[324]. The sentences I consider appropriate to be imposed for each of the Offences are not inconsistent with the sentences imposed in the matters to which I have been referred. Totality principle 1. The totality principle requires the Court, when passing a series of sentences that have each been properly calculated in relation to the offence for which they are imposed, to review the aggregate sentence and consider whether, having regard to the totality of the criminal behaviour, the aggregate sentence imposed is just and appropriate: Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 63; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [196]; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40]; Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]. 2. The parties agree and I find, that the First Offence and the Second Offence presently before the Court arise out of the same "originating cause", being the failure of the Pumping Station. The prosecutor notes the Second Discharge was also due to the inadequacy of the stop boards that had been installed in the Overflow Structure. I consider that the totality principle applies to the Offences, as the Offences constitute related criminal behaviour that is causally, temporally and spatially linked. Moiety 1. The prosecutor seeks an order that a moiety to be paid to the prosecutor in accordance with s 122 of the Fines Act 1996 (NSW) ('Fines Act'). 2. As noted by Pain J in EPA v Sydney Water 2020, where the statutory requirements of the Fines Act are satisfied, the Court has discretion to order that a moiety is paid (and this discretion can be exercised despite separate provisions for the payment of investigation costs within the statutory regime). In that case, Pain J was open to making the order, as the moiety would compensate the prosecutor and support ongoing environmental law enforcement activities, rather than provide a "windfall gain": at [116]-[118]. This approach was adopted by Pepper J in EPA v Sydney Water 2021, when making an order for a moiety: at [246]. 3. The prosecutor in these proceedings did not make specific submissions in relation to the order sought (and, in particular, whether a moiety was needed to fully compensate the prosecutor for its professional costs investigating the commission of the Offences). Sydney Water in these proceedings submits that it does not cavil at the approach taken to an order for a moiety in EPA v Sydney Water 2020 and EPA v Sydney Water 2021, but expressed some reservations in relation to the order sought, submitting that in circumstances where the proceedings were between two public authorities, fines should go towards specific environmental programs or general revenue, and that the prosecutor's funding was a matter for Treasury. 4. I have considered the prosecutor's proposed order for a moiety. In the absence of an identified need for compensation to the prosecutor (as was provided in EPA v Sydney Water 2020 and EPA v Sydney Water 2021), I do not consider it appropriate to make an order for a moiety. In coming to this conclusion, I have given more weight to the absence of submissions and evidence as to why the ordering of a moiety might be appropriate than Sydney Water's submissions as to why the ordering of a moiety might not be appropriate. Publication order 1. The publication of information relating to environmental offences and their repercussions is relevant to sentence, as it enhances public perception and the deterrent effect of the sentence imposed: Waste Recycling at [242]; Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 at [163]; EPA v NSW 2019 at [86]. 2. The prosecutor seeks publication orders pursuant to s 250(1)(a) of the POEO Act requiring Sydney Water to publicise the Offences and the outcome of these proceedings by: 1. Publishing a notice in a number of newspapers; 2. Posting the text of the notice, a photograph (which was part of the statement of agreed facts before the Court), and a hyperlink to this judgment on Sydney Water's Facebook page; 3. Tweeting specified text, a photograph (which was part of the statement of agreed facts before the Court), and a hyperlink to this judgment from Sydney Water's Twitter account; 4. Posting a photograph (which was part of the statement of agreed facts before the Court), a specified description caption and a url for this judgment on Sydney Water's Instagram account. 1. The form of the orders including the publication order was generally agreed between the parties. I find that it is appropriate that a publication order is made for the purpose of alerting the public to the Offences and to improve the effectiveness of the sentences imposed as a deterrent: Waste Recycling at [242]; EPA v Sydney Water 2020 at [113]. Order under s 250(1)(e) of the POEO Act 1. Section 250(1)(e) of the POEO Act provides that the Court may order an offender to pay a specified amount to a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes. 2. The prosecutor seeks an order under s 250(1)(e) of the POEO Act, that Sydney Water pays a specified amount to the City of Parramatta Council for the purposes of the project titled "Parramatta River Fish Lift Refurbishment and Fish Habitat Improvement Proposal" which has a project cost of $97,175. If the quantum of the penalty ordered by the Court for the Offences exceeds this amount, the prosecutor seeks a further order under s 250(1)(e) of the POEO Act that Sydney Water pays a specified amount to the City of Parramatta Council for the purposes of the project titled "Toongabbie Creek Riparian Restoration Project Proposal" which has a project cost of $116,872 over two years. Details of the projects were provided by the prosecutor and tendered as part of the prosecutor's proposed orders (Exhibit 2). 3. I have reviewed the details of the projects provided by the prosecutor and am satisfied that they contribute to the restoration and enhancement of the environment. Specifically, the "Parramatta River Fish Lift Refurbishment and Fish Habitat Improvement Proposal" aims to facilitate movement and long-term survival of native fish and the "Toongabbie Creek Riparian Restoration Project Proposal" aims to restore critically endangered River-flat Eucalypt Forest canopy and mid-storey canopy at a specific reserve. I consider that these projects meet the requirements of s 250(1)(e) of the POEO Act. I consider it appropriate in the circumstances that the monetary penalty imposed by the Court is directed to these projects. As will be seen below, the monetary penalties which I intend to impose are likely to fund the whole of one of the projects and constitute a contribution to the other project (noting that project is scalable and can proceed on the basis of such a contribution). 4. The prosecutor's proposed orders include an order that for a period of 36 months from the date of the orders, all public references by Sydney Water to the "Parramatta River Fish Lift Refurbishment and Fish Habitat Improvement Proposal" and the "Toongabbie Creek Riparian Restoration Project Proposal" are to be accompanied by a specified statement indicating that Sydney Water's contribution was made as part of a monetary penalty ordered by the Court. In oral submissions, Sydney Water submitted that the period should be limited to 12 months as where a project is permanent or is being undertaken over two years (like those proposed), the utility of the public message sought by Sydney Water may be achieved over a shorter period. 5. I have considered the prosecutor's and Sydney Water's submissions and consider that a period of 24 months for public references to the projects is appropriate. Costs of proceedings 1. Sydney Water has agreed to pay the prosecutor's costs in each of the proceedings and I take this, and the publication order, into account in determining the appropriate sentences: Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 at [100]. Nonetheless, an order for costs does not justify reducing a penalty to an amount in relation to either of the Offences lower than that suggested by the general pattern of sentencing for like offences. Monetary penalties 1. Synthesising the above objective and subjective circumstances, I find that the appropriate penalties to be imposed are: 1. $180,000 for the First Offence, which should be reduced by 25% for the utilitarian value of the early guilty plea entered by Sydney Water and other mitigating circumstances to $135,000; 2. $80,000 for the Second Offence, reflecting my finding that the Second Offence is of less objective seriousness than the First Offence. Again, this should be reduced by 25% for the utilitarian value of the early guilty plea entered by Sydney Water and other mitigating circumstances to $60,000. 1. I consider that the totality principle, as considered at [161]-[162] above, requires that there be an adjustment to the aggregate amount of $195,000, as the Offences constitute related criminal behaviour that is causally, temporally and spatially linked. The adjustment that I consider just and appropriate is to reduce each monetary penalty by 10% resulting in monetary penalties in the sum of $121,500 for the First Offence and $54,000 for the Second Offence, a total of $175,500. Orders 1. The orders of the Court are: In proceedings 2019/00326592: 1. The defendant, Sydney Water Corporation, is convicted of the offence against section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act') as charged. 2. Pursuant to section 250(1)(e) of the POEO Act, Sydney Water Corporation is to pay the amount of $97,175 to the City of Parramatta Council, within 28 days of the date of this order, for the purposes of the project titled "Parramatta River Fish Lift Refurbishment and Fish Habitat Improvement Proposal" as described in Annexure "A" to these orders. 3. Pursuant to section 250(1)(e) of the POEO Act, Sydney Water Corporation is to pay the amount of $24,325 to the City of Parramatta Council, within 28 days of the date of this order, for the purposes of part or all of the project titled "Toongabbie Creek Riparian Restoration Project Proposal" as described in Annexure "B" to these orders. 4. For a period of 24 months from the date of these orders, all future public references by Sydney Water Corporation to its contribution to the projects described in Orders (2) and (3) are to be accompanied by the following statements (as relevant): "Sydney Water Corporation's contribution to the "Parramatta River Fish Lift Refurbishment and Fish Habitat Improvement Proposal" is part of a penalty imposed by the Land and Environment Court of New South Wales after Sydney Water Corporation was prosecuted by the Environment Protection Authority and convicted of two offences against s 120(1) (water pollution) of the Protection of the Environment Operations Act 1997 (NSW)." "Sydney Water Corporation's contribution to the "Toongabbie Creek Riparian Restoration Project Proposal" is part of a penalty imposed by the Land and Environment Court of New South Wales after Sydney Water Corporation was prosecuted by the Environment Protection Authority and convicted of two offences against s 120(1) (water pollution) of the Protection of the Environment Operations Act 1997 (NSW)." In proceedings 2019/00326594: 1. The defendant, Sydney Water Corporation, is convicted of the offence against section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act') as charged. 2. Pursuant to section 250(1)(e) of the POEO Act, Sydney Water Corporation is to pay the amount of $54,000 to the City of Parramatta Council, within 28 days of the date of this order, for the purposes of part or all of the project titled "Toongabbie Creek Riparian Restoration Project Proposal" as described in Annexure "B" to these orders. 3. For a period of 24 months from the date of these orders, all future public references by Sydney Water Corporation to its contribution to the project described in Order (2) is to be accompanied by the statement that: "Sydney Water Corporation's contribution to the "Toongabbie Creek Riparian Restoration Project Proposal" is part of a penalty imposed by the Land and Environment Court of New South Wales after Sydney Water Corporation was prosecuted by the Environment Protection Authority and convicted of two offences against s 120(1) (water pollution) of the Protection of the Environment Operations Act 1997 (NSW)." In both proceedings 2019/00326592 and 2019/00326594: 1. Pursuant to section 248(1) of the POEO Act, Sydney Water Corporation is to pay the Environment Protection Authority's reasonably incurred costs and expenses incurred during the investigation of the Offences in the amount of $22,893. 2. Pursuant to section 257B of the Criminal Procedure Act 1986 (NSW), Sydney Water Corporation is to pay the Environment Protection Authority's costs in an amount as agreed or as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW). 3. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act'), Sydney Water Corporation, at its expense, is to: 1. within 28 days of the date of this order, cause a notice to be placed within the first 5 pages of the Sydney Morning Herald, the Daily Telegraph and the Parramatta Advertiser at a minimum size of 10cm x 18cm, with the text of such notice to be as set out in Annexure "C" to these orders; and 2. within 42 days of the date of this order, provide to the Environment Protection Authority, a complete copy of the pages of the Sydney Morning Herald, the Daily Telegraph and the Parramatta Advertiser on which the notice was published in accordance with Order (3(a)) above, appears. 1. Pursuant to s 250(1)(a) of the POEO Act, Sydney Water Corporation is to: 1. within 14 days of the date of this order, publicise the Offences and the orders made against it by "posting" the text of Annexure "C" to these orders on Sydney Water Corporation's Facebook page, together with the photograph at Annexure "D" and a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website and "tagging" the Environment Protection Authority and the City of Parramatta Council in the post. The post is to be made between the times of 8.00am and 10.00am or between 4.30pm and 6.30pm on a weekday. This post must remain a pinned post on Facebook that remains at the top of Sydney Water Corporation's Facebook page for a minimum of 7 days; 2. within 14 days of the date of this order, publicise the offences and the orders made against it by "tweeting" the following text from Sydney Water Corporation's Twitter account: "@SydneyWaterNews prosecuted by @NSW_EPA and convicted of two water pollution offences in relation to overflow of approximately 2,800,000 litres of untreated sewage into Parramatta River in October 2018. Ordered to pay $175,500 in penalties: [insert hyperlink to judgment as published on NSW Caselaw website]" together with a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website and the photograph at Annexure "D". The tweet is to be made between the times of 8.00am and 10.00am or between 4.30pm and 6.30pm on a weekday. This tweet must remain a pinned tweet on Twitter that remains at the top of the Sydney Water Corporation's Twitter page for a minimum of 7 days. The Environment Protection Authority may tag Sydney Water Corporation's Twitter account in any Environment Protection Authority tweets about the judgment; and 1. within 14 days of the date of this order, publicise the offences and the orders made against it by "posting" the photograph at Annexure "D" on its Instagram account with the following caption: "@sydneywater was prosecuted by @NSW_EPA and convicted of two water pollution offences in relation to overflow of approximately 2,800,000 litres of untreated sewage into Parramatta River in October 2018. Sydney Water Corporation pleaded guilty to the offences. Sydney Water Corporation was ordered to pay a total of $175,500 in penalties, including $97,175 to the "Parramatta River Fish Lift Refurbishment and Fish Habitat Improvement Proposal" and $78,325 to the "Toongabbie Creek Riparian Restoration Project Proposal": [insert url to judgment as published on NSW Caselaw website] #sydneywater #environment #CityofParramatta #ParramattaRiver" together with a url to the Court's judgment as published on the New South Wales Caselaw website. The post is to be made between the times of 8.00am and 10.00am or between 4.30pm and 6.30pm on a weekday. This post must remain on Sydney Water Corporation's Instagram account for a minimum of 1 month. ********** Annexure A (948069, pdf) Annexure B (1129156, pdf) Annexure C (97274, pdf) Annexure D (1604868, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2021