Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131 Hearing dates: 29 November 2010 Decision date: 03 August 2011 Jurisdiction: Class 5 Before: Pepper J Decision: The Court makes the following orders: (1) Unomedical is fined the sum of $90,000; (2) pursuant to s 257B of the Criminal Procedure Act 1986 Unomedical is to pay the prosecutor's costs of the proceedings in the amount of $140,000; (3) within 28 days of the date of this order, pursuant to s 250(1) of the Act, Unomedical, at its expense, is to place a notice in the first 12 pages of the early general news section of the following publications, at a minimum size of 10cm x 20cm in the form attached at Annexure 'A': (a) The Manly Daily; and (b) The Sydney Morning Herald; and (4) the exhibits are to be returned. Catchwords: ENVIRONMENTAL OFFENCES: sentence upon earlier finding of guilt - failure to carry on an activity by such practicable means as may have been necessary to prevent or minimise air pollution - no emission standard or rate prescribed for the emission of the pollutant - consideration of objective and subjective factors - extent of environmental harm - whether it was appropriate to impose a daily penalty - whether the offence was committed in disregard of public safety - whether the offence involved a series of criminal acts - whether the commission of the offence was commercially motivated - assistance to authorities Legislation Cited: Clean Air Act 1961, ss 15(2), 19(2) Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22, 23 Criminal Procedure Act 1986, ss 257B, 257G Fines Act 1996, s 6 Protection of the Environment Operations Act 1997, ss 3, 48, 96, 128, 132(a), 241 Protection of the Environment Operations Amendment Act 2005 Protection of the Environment Operations Amendment (Scheduled Activities and Waste) Regulation 2008 Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Elyard v R [2006] NSWCCA 43; (2006) 45 MVR 402 Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31; (2009) 165 LGERA 383 Environment Protection Authority v Burrangong Meat Processors Pty Ltd [2003] NSWLEC 102 Environment Protection Authority v Caltex Refineries (NSW) Pty Ltd [2006] NSWLEC 335 Environment Protection Authority v Caltex Refineries (NSW) Pty Limited [2008] NSWLEC 194 Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 Environment Protection Authority v Causmag Ore Co Pty Ltd [2009] NSWLEC 164 Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 Environment Protection Authority v Coastal Recycled Cooking Oils Pty Limited [2008] NSWLEC 242 Environment Protection Authority v Forgacs Engineering Pty Limited [2009] NSWLEC 64 Environment Protection Authority v Fulton Hogan Pty Ltd [2008] NSWLEC 268; (2008) 163 LGERA 345 Environment Protection Authority v Ghossayn [2009] NSWLEC 181 Environment Protection Authority v Hanna [2010] NSWLEC 98 Environment Protection Authority v HTT Huntley Heritage Pty Limited [2003] NSWLEC 76; (2003) 125 LGERA 332 Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39 Environment Protection Authority v Illawarra Coke Co Pty Ltd [2002] NSWLEC 21; (2002) 118 LGERA 451 Environment Protection Authority v Incitec Limited [2003] NSWLEC 381; (2003) 131 LGERA 176 Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695 Environment Protection Authority v Middle Harbour Constructions Pty Ltd [2002] NSWCCA 123; (2002) 119 LGERA 440 Environment Protection Authority v Nationwide Oil [2002] NSWLEC 201 Environmental Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23 Environment Protection Authority v Shoalhaven Starches [2006] NSWLEC 685 Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114; (2010) 174 LGERA 314 Environment Protection Authority v Transpacific Industries Pty Limited; Environment Protection Authority v Transpacific Refiners Pty Limited [2010] NSWLEC 85 Environment Protection Authority v Unomedical Pty Limited (No 3) [2010] NSWLEC 198 Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 FS v R [2009] NSWCCA 301; (2009) 198 A Crim R 383 Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Graham v R [2009] NSWCCA 212 Hardt v Environment Protection Authority [2007] NSWCCA 4; (2007) 156 LGERA 337 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Mansour v R [2011] NSWCCA 28 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Newcastle City Council v Pacefarm Egg Products [2002] NSWLEC 66 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v Delcaro (1989) 41 A Crim R 33 R v Hill [2004] NSWCCA 257 R v M [2005] NSWCCA 224 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v White (Court of Criminal Appeal, 25 July 1991, unreported) R v Woodman [2001] NSWCCA 310 Rahme v R (1989) 43 A Crim R 81 State Pollution Control Commission v A C Hatrick Chemicals Pty Ltd (1992) 76 LGRA 346 SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249 Thomson v Hawkesbury City Council [2009] NSWLEC 151 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Principal judgment Parties: Environment Protection Authority (Prosecutor) Unomedical Pty Limited (Defendant) Representation: Counsel: Mr B Docking (Prosecutor) Mr I Lloyd QC (Defendant) Solicitors: Department of Environment and Climate Change (Prosecutor) Henry Davis York (Defendant) File Number(s): 50046 of 2008 Judgment Introduction 1In Environment Protection Authority v Unomedical Pty Limited (No 3) [2010] NSWLEC 198 ("Unomedical (No 3) "), the Court found the defendant, Unomedical Pty Limited ("Unomedical") guilty of an offence against s 128(2) of the Protection of the Environment Operations Act 1997 ("the Act"), in that between 1 January 2002 to 26 July 2007, being the occupier of premises, it failed to carry on an activity in or on the premises by such practicable means as may have been necessary to prevent or minimise air pollution where no emission standard or rate had been prescribed for the air impurity. 2The activity in question was the sterilisation of medical instruments and equipment that resulted in the emission of an air impurity, namely, ethylene oxide ("EtO") during the sterilisation process. The "practicable means" that were found to be necessary to prevent or minimise the emission of EtO that Unomedical failed to implement included some form of an abatement system, for example, the installation of a catalytic converter. 3Section 128 of the Act creates the following offence: 128 Standards of air impurities not to be exceeded (1) The occupier of any premises must not carry on any activity, or operate any plant, in or on the premises in such a manner as to cause or permit the emission at any point specified in or determined in accordance with the regulations of air impurities in excess of: (a) the standard of concentration and the rate, or (b) the standard of concentration or the rate, prescribed by the regulations in respect of any such activity or any such plant. (2) Where neither such a standard nor rate has been so prescribed, the occupier of any premises must carry on any activity, or operate any plant, in or on the premises by such practicable means as may be necessary to prevent or minimise air pollution. (3) A person who contravenes this section is guilty of an offence. 4This judgment determines the appropriate sentence to be imposed on Unomedical for the commission of the offence. Having regard to the objective circumstances of the commission of the offence and the subjective circumstances of Unomedical, the Court imposes a fine of $90,000 and orders the placement of a publication notice. In addition, Unomedical is ordered to pay the prosecutor's costs of the proceedings in the amount of $140,000. Factual Findings Relevant to the Imposition of the Sentence 5Relevant to the issue of sentencing, in Unomedical (No 3) the Court found beyond reasonable doubt the following facts. It is these facts, together with an agreed statement of facts tendered for the purpose of sentencing, that inform the determination of the appropriate sentence. 6Unomedical is a company that specialises in the manufacture and sterilisation of single use medical equipment and instruments. In so doing, the company operates a facility at Wilmette Place, Mona Vale, New South Wales. It has done so since 1 January 2002. However, prior to this Unomedical had, since 1985, operated a similar plant nearby at Bassett Street, Mona Vale. That is to say, Unomedical had been, in the course of manufacturing operations, sterilising medical equipment in Mona Vale for over 20 years at the time of the commission of the offence (Unomedical (No 3) at [6]). 7In the course of relocating their operations, Unomedical applied for and obtained a development consent from Pittwater Council ("the council"), the consent authority and regulatory authority under the Act. The consent did not contain any controls on the amount of EtO that could be emitted from the facility (at [7]). 8In 2002 the facility was subject to an environmental audit by Ms Angela Daly from the council. Her report recorded that there was no evidence of air emissions, and therefore, no recommendations were made. The report was sent to Unomedical, both at Mona Vale and to Unomedical's parent company, Maersk, in Denmark, on 29 November 2002. No response was forthcoming from either company (at [67]-[73]). 9Following a report prepared by HLA Enviro Sciences Pty Limited ("HLA"), at the request of Unomedical, in May or June 2007, the council issued Unomedical with a prevention notice under s 96 of the Act on 26 July 2007. 10The 2007 HLA report revealed that the accepted, albeit not prescribed, standard of measurable EtO in the ambient air of 0.0033mg/m3 (or 3.3 ug/m ) had been exceeded and that 99% of the EtO used in the sterilisation process was discharged into the atmosphere through the stack on the roof of the facility. As a consequence, Unomedical ceased its operations at the facility until it was able to produce documented evidence that the standard had been complied with (at [10]-[13], [56] and [137]). 11In July and August 2007, Unomedical installed a catalytic abatement system in the steriliser. It reduced the amount of EtO vented into the atmosphere at the end of each sterilisation cycle by approximately 99.9% (at [14]). 12On 16 August 2007, the council issued Unomedical with a second prevention notice under the Act (at [15]). Again, operations ceased and did not resume again until September 2007 (at [17]). 13Since the date of the offence, Sch 1 of the Act has been amended (on 28 April 2008 by the Protection of the Environment Operations Amendment (Scheduled Activities and Waste) Regulation 2008) so that the use of more than one tonne of EtO per year in the sterilisation of medical equipment is a scheduled activity. Thus Unomedical has held an environmental protection licence for its operations at the facility permitting it to emit EtO, in accordance with s 48 of the Act, since the amendment came into effect. 14An affidavit of Ms Jennifer Luke, a director of Unomedical, sworn 25 November 2010, deposed that on 17 March 2010 Unomedical permanently shut the steriliser at the facility with the result that EtO is no longer stored, used or emitted from it. 15As a consequence, on 30 April 2010 Unomedical applied for, and the Environment Protection Authority ("EPA") subsequently approved, the surrender of Unomedical's environment protection licence. 16Unomedical, however, remains a registered company in Australia. 17EtO is a carcinogen known to be harmful to human health. There was no doubt that Unomedical knew this at the time of the commission of the offence (at [224]-[237]). Further, Mr Anders Kolding, the Managing Director of Unomedical during the charge period, conceded that its presence in the environment ought to be minimised (at [231]). 18Having said this, it was Mr Kolding's belief that it was not necessary for Unomedical to implement any measures during the charge period to minimise the EtO emissions because at the volume emitted into the atmosphere by Unomedical its impact on the environment was very limited and, in any event, there were no defined regulatory limits on the facility's EtO emissions (at [232]-[233]). 19But it was found that this belief was not credible for the reasons given in Unomedical (No 3) (at [234]), namely, that: (a) although he was not aware of the precise amounts of EtO being emitted from the stack at the facility, Mr Kolding knew that there "was never a 99% efficiency - by that I mean destruction of ethylene oxide before it was emitted"; (b) between 2002 and July 2007, Unomedical did not undertake any testing or modelling, independent or otherwise, to measure the emission rates of the EtO, or to predict its dispersion once it entered into the atmosphere; (c) there were no limits at all applied to the volume of EtO discharged from the stack into the atmosphere; (d) there was no monitoring of EtO emissions outside the facility; (e) Mr Kolding could have sought assistance and advice about testing to measure EtO emissions from the facility from Unomedical's EtO specialist in Denmark, but did not; (f) while Mr Kolding told Mr Nicholas Ives from the council that the discharge of EtO was safe because an audit report commissioned by Environmental and Earth Sciences Proprietary Limited when Unomedical had initially moved to Wilmette Place had expressed this view, the report was never received by Mr Kolding (it was received instead by the head office in Denmark) and it was never provided to Mr Ives as promised by Mr Kolding; (g) Mr Kolding agreed that none of the literature and learning that he was aware of during the charge period stated that it was environmentally safe to emit the amount of EtO Unomedical was discharging into the atmosphere from the facility. Mr Kolding's attitude in this regard was best summarised by his evidence that "I didn't think anyone said it was unsafe"; (h) Mr Kolding accepted that he was aware during the charge period of Pts 6.4 and 6.5 of the Commonwealth National Code, that provided that it was good general policy to keep exposure to EtO as low "as practicable" and that "the absence of a relevant exposure standard" for EtO should "not be considered an indication that the exposure need not be controlled". While Unomedical submitted that the National Code was irrelevant because it was only an occupational health and safety guideline, the fact remained that Unomedical was, by reason of its awareness of the National Code's content, not only cognisant of the dangers of exposure to EtO, but was also aware that exposure to EtO ought to be regulated and monitored in all circumstances; (i) while Mr Kolding knew that EtO had a half-life in the atmosphere, he did not know that absent rain washing and relying just on normal water vapour found in the atmosphere, that one week later EtO was still half its original concentration. And moreover, he had not informed himself of this fact; (j) it was possible that 99% of the EtO discharged still existed one kilometre away with a light wind of one metre per second and that there was nothing to prevent the EtO from being blown into a nearby factory or residential dwelling; and (k) Mr Kolding had not seen or read s 128(2) of the Act until after the charge period and that he was not aware of the duty imposed on Unomedical pursuant to that provision. 20The Court also rejected as credible Mr Kolding's stated belief that because Unomedical utilised less than 10 tonnes of EtO per annum, no measures were required to be implemented to reduce the facility's stack emissions (at [235]). 21Finally, the Court did not accept the submission that by allowing Unomedical to continue operating without installing an abatement system prior to the prevention notices being issued, this amounted to a concession by the EPA that there was no harm, actual or potential, to humans from the environmental exposure to EtO from the facility's stack emissions (at [236]). 22Thus the Court found that Unomedical was aware of the fact that EtO was a dangerous substance that was toxic and was classified as a carcinogen, with attendant risks to the health and safety of humans who came into contact with it, both inside and outside the facility (at [237]). Applicable Legal Principles in Determining Sentence Purposes of Sentencing 23Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") provides that the purposes of imposing a sentence on an offender include: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. Correct Approach to Sentencing 24It is a basic principle of sentencing law that the sentence imposed by the Court for an offence must both reflect, and be proportionate to, the objective circumstances of the offence and the personal or subjective circumstances of the defendant ( Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472). 25Section 21A of the CSPA further identifies matters that the Court must take into account when sentencing, including those in aggravation (s 21A(2)) and those in mitigation (s 21A(3)). 26In determining the appropriate sentence for offences against the Act the Court must also consider the factors contained in s 241(1) of the Act. That section provides: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. 27The correct method of sentencing is the instinctive synthesis method having regard to all of the relevant objective and subjective circumstances surrounding the commission of the offence (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]). 28In so doing, the Court must not take facts into account in a manner that is adverse to Unomedical unless those facts have been established beyond reasonable doubt. But, if there are circumstances that the Court proposes to take into account in favour of Unomedical, it is enough that those circumstances are proved on the balance of probabilities (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]). Objective Considerations 29The primary factor the Court must consider when determining sentence is the objective gravity or seriousness of the offence. This is determined by consideration of the upper most limit of a sentence that is justified as appropriate or proportionate to the gravity of the crime in light of its objective circumstances (Veen v The Queen (No 2) at 472, 485-486, 490-491 and 496 and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354), and the lower limit of the offence by allowing for consideration of the subjective factors of the matter to produce a proportionate range that reflects the objective gravity of the offence (Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [50] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [46]). 30The objective circumstances of the offence and the purposes of punishment inform the lower limit of sentencing discretion, a bottom line beneath which a sentence cannot legitimately be set (Rawson at [46] and Graham v R [2009] NSWCCA 212 at [43]-[44]). 31The objective gravity of the offence has two principle components: first, the specific acts or omissions of the offender; and second, the consequences of those acts and omissions ( Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [22] and Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 at [66]). 32In determining the objective seriousness of the offence, the circumstances of the offence to which the Court may have regard include (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163], Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] and Rawson at [48]): (a) the nature of the offence; (b) the maximum penalty for the offence; (c) the objective harmfulness of Unomedical's actions; (d) Unomedical's state of mind in committing the offence; (e) Unomedical's reasons for committing the offence; (f) the foreseeability of the risk of harm to the environment; (g) the practical measures available to Unomedical to avoid harm to the environment; and (h) Unomedical's control over the causes of harm to the environment. Nature of the Offence 33A fundamental consideration of relevance to environmental offences is the degree to which, having regard to the maximum penalties provided by the statute in question, the offender's conduct would offend against the legislative objectives expressed in the statutory offence (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15] and Rawson at [49]). 34In considering the nature of the offence the Court may take into account the objects of the legislation that has been breached. The relevant objects of the Act contained in s 3 include the following: 3 Objects of Act The objects of this Act are as follows: (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, ... (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following: (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation,... 35In Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114; (2010) 174 LGERA 314 Biscoe J noted in relation to s 3(a) of the Act that (at [57]): 57The principles of ecologically sustainable development include inter-generational equity - namely that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations: s 6(2) of the Protection of the Environment Administration Act 1991. 36These objects and the operative provisions of the Act reflect the community adoption of "a stern policy against pollution" (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359 per Mahoney JA and Centennial Newstan at [61]). 37Thus, as the Court noted in Unomedical (No 3) , the objects reveal that the central mischief to which the Act is directed is to avoid, or at the very least, reduce, pollution in order to prevent harm to human safety and the natural environment for the benefit of both present and future generations (at [188]). By breaching the duty imposed by s 128(2) on persons engaged in activities that pollute the air to reduce or eliminate this form of pollution, Unomedical has undermined the legislative intent underpinning not only this provision but the broader legislative purpose of the Act. Maximum and Daily Penalty 38The maximum penalty for an offence against s 128(2) of the Act in the case of a corporation is $1 million and in the case of a continuing offence, $120,000 for each day the offence continues (s 132(a) of the Act). 39The maximum penalty increased during the offence period following the promulgation of the Protection of the Environment Operations Amendment Act 2005 (assented to on 24 November 2005 and commenced on 1 May 2006). Prior to the amendment, the maximum penalty for a corporation was $250,000, and in the case of a continuing offence $120,000 for each day the offence continued (s 132(a) of the Act). 40It was not in dispute that irrespective of the change, the maximum penalty governing the offence committed by Unomedical was $1 million ( R v White , Court of Criminal Appeal, 25 July 1991, unreported). It was also not a matter of controversy that it does not follow that for every offence committed after the maximum penalty has increased, there must be a commensurate increase in the penalty imposed for that contravention ( Cabonne Shire Council v Environment Protection Authority [2011] NSWCCA 280; (2001) 115 LGERA 304 at [37] and Environment Protection Authority v Middle Harbour Constructions Pty Ltd [2002] NSWCCA 123; (2002) 119 LGERA 440 at [12]). 41The maximum statutory penalty for an offence is of significance in determining the seriousness with which the legislature regards the particular offence under consideration (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [51]-[52]). This fourfold increase in the maximum penalty for a contravention of the Act indicates a legislative intention that existing sentencing patterns for offences involving pollution of air are to move upwards (Way at [52], Environment Protection Authority v Caltex Refineries (NSW) Pty Limited [2008] NSWLEC 194 at [61]-[64] and Centennial Newstan at [65]). 42The prosecutor alleges that during the charge period the offence was a continuing one in contravention of s 128(2) of the Act. Accordingly, the prosecutor seeks the imposition of a daily penalty, excluding the days on which the sterilisation plant was not operating, during the charge period. 43Synthesising Table 9 with Table 10 in the 2008 HLA report, the prosecutor submitted that the number of days that Unomedical had been in breach of s 128(2) of the Act were as follows: Year (a) Total No. of Steriliser Runs (b) Cycle times (hrs) No Days = (a) x (b) 24 hrs 2002 253 30 316.25 2003 285 28 332.50 2004 324 26 351.00 2005 349 21 305.37 2006 417 20 347.50 2007 308 17 (favourable assumption to Unomedical as lowest at either site) 218.16 (until 26 July) Total 1,936 142 1,870.78 44This would equate to a total maximum daily penalty of $224,493,600 during the charge period. While this amount could only be awarded for an offence that fell within the worst category of cases, which clearly the present contravention was not, even if a modest penalty of $1000 a day for the continuing offence was imposed, this would nevertheless equate to $1,870,780, which on any view is an unreasonably disproportionate amount. 45Unsurprisingly, Unomedical rejected this approach. It did so on several bases. First, it submitted that the prosecutor could not prove beyond reasonable doubt each day the steriliser operated, and therefore, whether s 128(2) had been breached. Unomedical relied, in this respect, on: (a) uncertainty as to when the EtO was first emitted from the premises. Whereas the summons states it was "on or around 1 January 2002", Mr Kolding's evidence was that the facility at Wilmette Place commenced operations in or about March 2002; (b) similar ambiguity existing in relation to the conclusion of the charge period. This is because prior to issuing the First Prevention Notice, Unomedical voluntarily shut down the steriliser at the request of the council, the Department of Health and the EPA for two days; (c) inconsistency in the evidence of Mr Kolding as to the frequency of the operation of the steriliser at the facility, viz , whether it operated "24/7", "normally five days a week", "only five days a week", or "typically seven days a week"; and (d) the prosecutor's admission in response to a request for further and better particulars from Unomedical on 11 September 2008, that "the prosecutor does not know and cannot further particularise the precise date or precise period during which the offence was committed." 46Second, even if the Court was sufficiently confident of the number of actual days during the charge period the steriliser operated, and hence that a continuing offence was committed that was such so as to warrant the imposition of a daily penalty, the Court would be disinclined to exercise its discretion to impose a daily penalty given that: (a) the emission of EtO was based on an honest but mistaken belief by Unomedical that it was not contravening the law. That is to say, this is not a case where Unomedical was flagrantly and deliberately contravening the law at any point during the charge period. Rather, the contravention took place in the context of the application of an untested and uncertain regulatory provision. The decision of Environment Protection Authority v HTT Huntley Heritage Pty Limited [2003] NSWLEC 76; (2003) 125 LGERA 332, relied upon by the prosecutor, may be distinguished on this basis alone; and (b) no actual harm has arisen from the emission of EtO into the atmosphere. 47Third, even if the Court was inclined to impose a daily penalty, applying the totality principle, any such sanction should be frugal having regard to the low objective culpability of Unomedical. 48In Gittany the Court described the totality principle and its application as follows (at [196] and [200] and see Rawson at [222]): [196] The totality principle is a principle of sentencing which must be applied when sentencing an offender who has committed more than one offence. The court should consider questions of cumulation or concurrence as well as questions of totality. When reviewing the aggregate sentence, the Court must consider whether it is "just and appropriate" and reflects the total criminality before the court: see Mill v Queen (1988) 166 CLR 59 at 62-63; Pearce v The Queen (1988) 194 CLR 610 at [49]; R v Kalache (2000) 11 A Crim R 152 at [110], [180]; R v AEM [2002] NSWCCA 58 at [70]; and R v Bahsa (2003) 138 A Crim R 245 at [62], [63]. ... [200] In applying the totality principle, the Court must avoid determining a sentence that is disproportionate to the seriousness of the offence: R v A at [32]. The Court must first fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality: Pearce v The Queen at [45]; R v Wheeler at [31], [32] and R v AEM at [64], [67]. 49In my opinion, there is substantial force in the arguments advanced by Unomedical. I accept that there is insufficient evidence for the Court to find beyond reasonable doubt that s 128(2) was contravened on 1,870.78 days. To do so would be to draw inferences premised on assumptions. This is an insufficient basis upon which to make a finding that satisfies the requisite criminal standard. I therefore decline to do so and, concomitantly, I decline to order a daily penalty. 50Even if a daily penalty was imposed on Unomedical, given the number of days contended for by the prosecution the amount fined would have to be so low as to be virtually negligible to avoid imposing a sanction on Unomedical that was manifestly disproportionate to the seriousness of the offence, which includes as its components, the harm caused by the commission of the offence, the state of mind of the offender and the reasons for committing the unlawful act. As discussed below, when these factors are considered, the objective gravity of the offence could not warrant, particularly when the totality of the penalty to be imposed on Unomedical is taken into account, the imposition of anything other than the most trivial of daily penalties. 51In my view, the preferable course is not to impose a daily penalty on Unomedical, but is to take into account as a factor augmenting the objective seriousness of the offence the fact that this was not a discrete instance of emission of EtO by Unomedical, but that it occurred on multiple occasions and over a significant period of time (R v Delcaro (1989) 41 A Crim R 33 at 37-38, R v Woodman [2001] NSWCCA 310 at [29]-[30], R v Hill [2004] NSWCCA 257 at [6] and Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695 at [29]). The Offence Did Not Involve a Series of Criminal Acts 52If the offence is properly characterised, as the prosecutor submitted, as a series of criminal acts rather than a single act, this has the effect of aggravating the seriousness of the commission of the offence (s 21A(2)(m) of the CSPA). 53In my opinion, the same reasoning rejecting the imposition of a daily penalty is applicable to refute this submission. On any view, the offence did not involve a series of criminal acts pursuant to s 21A(2)(m) of the CSPA. Rather, the preferable characterisation of the commission of the offence is that of a single continuing offence, albeit over a substantial period of time. Actual or Likely Environmental Harm Caused by the Commission of the Offence 54The objective gravity of the offence is measured, in part, by whether there has been any actual or likely environmental harm and if so, its degree of seriousness (s 241(1)(a) of the Act). Usually the more serious the actual or potential environmental harm, the higher the penalty (Camilleri's at 701 and Environment Protection Authority v Fulton Hogan Pty Ltd [2008] NSWLEC 268; (2008) 163 LGERA 345 at [148]). 55The phrase "harm to the environment" is widely defined in the Dictionary to the 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. 56The breadth of the above definition is further amplified when regard is had to the meaning of the word "likely" in the phrase "harm caused or likely to be caused to the environment" contained in s 241(1)(a) of the Act. 57The harm to the environment need not only be considered in terms of actual harm, but must include the potential risk of harm. As Preston CJ stated in Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 (at [145]-[147]): 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 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. 58Consequently, the fact that there is no observable harm to the environment does not mean that an offence under the Act cannot be characterised as serious (Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31; (2009) 165 LGERA 383 at [26]). 59As discussed above, it was found in Unomedical (No 3) beyond reasonable doubt that EtO is a dangerous substance that is toxic and is classified as a carcinogen with health and safety risks to humans who come into contact with it (at [201]). Concomitantly, given the breadth of the definition given to the phrase "harm to the environment" in the Act and given the fact of the emission of the EtO into the atmosphere, the Court readily found that the commission of the offence had caused harm to the environment (at [182]). 60The Court also found beyond reasonable doubt, where it was necessary to do so, that the emission of the EtO caused potential or possible harm to the environment (at [202] and [237(b)]). 61The question that remains for sentencing purposes is what was the extent of this harm or the potential, or possible, or to use the language of s 241(1)(a) of the Act, "likely" harm. 62In relation to the health and environmental impact of the exposure to EtO from Unomedical's operations at the Mona Vale facility, the Court accepted the evidence of a Department of Health expert panel advising on the health impacts of the emissions that concluded that (at [20]): On balance, although there may have been a low level of cancer risk present, it is unlikely that the historical exposure to ethylene oxide from the operations of the Bassett Street and the Wilmette Place facilities have resulted in as much as one additional case of cancer among local residents. 63Further, the evidence revealed that no additional cases of cancer among the local population occurred as a result of exposure to EtO from the operation of the facility (at [230]). 64But the Court also found that while no tangible immediate harm was caused by the discharge of the EtO from the facility, given its toxicity, and in the absence of any knowledge or information as to its possible dispersion once it was emitted into the atmosphere from the stack, there was a very real potential for environmental harm occasioned by its release (at [237(b)]). 65As to the amount of EtO emissions during the charge period, the Court found that the most comprehensive assessment of usage and emissions for the facility was found in Table 9 in the subsequent report by HLA dated 17 January 2008 (at [239]): Annual Ethylene oxide emission at Wilmette Place Year Annual Ethylene oxide emitted (≈ used), kg Total No. Steriliser Runs Average Ethylene oxide Load Size (kg) 2002 5120 253 20.2 2003 5760 285 20.1 2004 5593 324 17.3 2005 6894 349 19.8 2006 9246 417 22.2 2007 6607 (YTD) 308 21.5 66Given that 99% of the EtO utilised in the s terilisation process was emitted into the atmosphere, as can be seen from column 1 of Table 9, it must follow that a significant quantity of EtO was discharged into the air. This, in turn, augments the extent of the harm or likely harm caused by the breach of s 128(2) of the Act. 67Unomedical submits that the Court is precluded from taking into account the potential or possible harm caused by the commission of the offence as found because s 241(1)(a) provides only for an examination of the "likely" harm to the environment. The submission may be rejected on two bases. 68First, in Newcastle City Council v Pacefarm Egg Products [2002] NSWLEC 66 (at [44]), the term "likely" in this context was described as "a real or not remote chance or possibility regardless of whether it is less or more than a fifty percent chance". The definition expressly incorporates, therefore, the "possibility" of harm to the environment and, in my opinion, would also implicitly encompass the "potential" for harm to the environment. It was for this reason that the Court found that the emission of EtO into the atmosphere caused potential or possible harm to the environment (at [202] and [237(b)]). 69Second, and in any event, irrespective of s 241(1)(a) of the Act, the Court is nevertheless permitted to take into account the potential harm to the environment occasioned by the unlawful criminal act of Unomedical. That is to say, there is nothing in the language of s 241(1)(a) of the Act that displaces the general consideration by the Court in all environmental sentencing proceedings of the actual and potential impact of the commission of the offence on the environment. This is validated by the unambiguous language of s 241(2) of the Act that states that "the court may take into consideration other matters that it considers relevant". 70Nonetheless, the evidence before the Court could not warrant anything other than a finding that both the harm and the likely harm to the environment occasioned by Unomedical's breach of s 128(2) of the Act was at the lower end of the spectrum. Was the Offence Committed Without Regard to Public Safety? 71As stated above, in Unomedical (No 3) the Court found that the evidence demonstrated that EtO was a known and accepted carcinogen which had the very real potential to cause harm to the environment, including to human health (at [201]). Further, the Court concluded (at [237(a)]) that: 237 Based on the evidence, there is no doubt in my mind, and I find accordingly, that: (a) Unomedical was aware of the fact that EtO was a dangerous substance that was toxic and was classified as a carcinogen with attendant risks to the health and safety of humans who came into contact with it, both inside and outside the facility... 72As a result, the prosecutor submitted that, as a factor in aggravation (s 21A(2)(i) of the CSPA), the offence was committed without regard to public safety. 73In what is now regarded as a seminal passage, in Elyard v R [2006] NSWCCA 43; (2006) 45 MVR 402 Basten JA opined that (at 12]): 12 It appears from the cases that the factor which has given rise to significant difficulty is para (i) dealing with offences committed "without regard for public safety". There has been limited consideration as to whether this factor involves an objective, or subjective test, and if subjective, what level of conscious or reckless disregard is required on the part of the offender. It may well be that this factor should be understood as encompassing both objective and subjective circumstances. However, the distinction can be helpful in order to avoid the danger of double-counting. Where the offence is of a kind which, objectively or abstractly, reflects a policy of prohibiting conduct which disregards public safety, it will be necessary, in order to engage the aggravating factor, to find some aspect of the specific conduct in question which goes beyond the objective element or underlying policy. 74The reasoning in Elyard was recently endorsed in Mansour v R [2011] NSWCCA 28 by Price J (with whom James and Hall JJ agreed: at [2] and [3]) who stated that (at [46]): 46 It is well established that a factor should not be taken into account as an aggravating factor under s 21A(2), if it is either an element of the offence for which the offender is being sentenced or an inherent characteristic of that kind of offence: see for example Elyard v Regina [2006] NSWCCA 43; Ward v R [2007] NSWCCA 22; (2007) 168 A Crim R 545. A factor, which is an inherent characteristic of the kind of offence for which the offender is being sentenced, cannot be taken into account as an aggravating factor under s 21A(2), unless its nature or extent in the particular case is unusual. As Simpson J observed in Regina v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218 at [37]: ... But this principle does not mean that the degree to which the "inherent characteristic" exists in relation to a particular offence may not, where it exceeds the norm, be taken into account as an aggravating factor. 75Thus if disregard for public safety is an inherent characteristic of the kind of offence for which the offender is being sentenced, in the present case s 128(2), it cannot be taken into account because s 21A(2)(i) of the CSPA is not engaged. 76In Unomedical (No 3) the Court described the objective intention of Parliament in enacting s 128(2) in the following way (at [188] and see also [216]): The objects reveal that the central mischief to which the POEOA is directed is to avoid, or at the very least, reduce pollution in order to prevent harm to human safety and the natural environment. The stated aim is not only wide in scope, it is preventative, rather than reactive, in direction... 77It is tolerably clear that "the objective element or underlying policy" reflected in the enactment of the offence is to prohibit conduct by occupiers of premises that disregards harm to the environment, which, consistent with the objects of the Act (see s 3(d) of the Act), includes harm to human health, or put another way, public safety. 78But this cannot, in my opinion, be equated with a finding that an inherent characteristic of offending s 128(2) of the Act is acting without regard for public safety. Unlike the supply of heroin, for example, there may be many instances where in the commission of an offence against s 128(2) regard is directed to public safety, but not to the consequences of the air pollution on flora and fauna. That is to say, the substance causing the air pollution is harmless in respect of human health but not in respect of the environment. 79Accordingly, in my opinion, and contrary to the submissions of Unomedical, it would not amount to double-counting to consider s 21A(2)(i) as an aggravating factor, assuming it is supportable by the evidence, in the determination of the appropriate sentence to be imposed on Unomedical. 80However, even having regard to the Court's findings concerning the state of Unomedical's knowledge as to the toxicity of EtO during the charge period, there is, in my opinion, insufficient evidence to support a finding that the conduct of Unomedical in breaching s 128(2) of the Act was in disregard for public safety. 81This is because those findings were directed to the issue of Mr Kolding's belief that no measures whatsoever were necessary to be implemented (let alone the implementation of "such practicable means"), and not to the question of whether or not Unomedical vented the EtO without regard to public safety. But while this belief was found not to be credible by the Court (at [234]), this is not be equated with a finding that the actions of Unomedical were carried out in disregard to public safety. Such a proposition suggests that no consideration was given by Unomedical to the impact of its sterilisation operations on human health. The evidence is to the contrary inasmuch as it demonstrates that the anthropomorphic effects of the EtO emissions were within Unomedical's contemplation but were dismissed (at [147] and [232]). In these circumstances, I do not find that the prosecutor has demonstrated, to the requisite degree, that Unomedical acted without regard to public safety in contravening the Act. Unomedical's State of Mind 82The offence is one of strict liability which means that mens rea is not an element of the offence. But the state of mind of Unomedical is nevertheless relevant to assess the objective seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed ( Rae at [42], Gittany at [123], Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [68] and [356], Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [75], Hardt v Environment Protection Authority [2007] NSWCCA 4; (2007) 156 LGERA 337 at [53] and Scahill at [69]). Likewise an offence that is premeditated ( Rae at [43]). 83The prosecutor advanced the argument that the objective seriousness of the offence was increased by Mr Kolding's knowledge that EtO was a dangerous substance that was toxic and classified as a carcinogen (at [224]). 84While at one level this proposition is undeniably correct, I nevertheless accept the submission of Unomedical that there was no evidence before the Court that Unomedical wilfully, intentionally, or even recklessly, committed the offence (see the summary of Unomedical's state of mind at [269]). Practical Measures 85A factor bearing upon the objective gravity of an offence is the practical measures that may have been taken by the defendant to prevent, control, abate or mitigate the harm to the environment (s 241(1)(b) of the Act). 86In Unomedical (No 3) , Mr John Court, an environmental engineering consultant, gave evidence of the practical measures available that Unomedical could have implemented to minimise the emission of EtO. In addition to the catalytic abatement system subsequently installed by Unomedical, which reduced the amount of EtO vented into the atmosphere by over 99%, Unomedical could have also implemented the following measures: (a) absorption (mixing the EtO with liquid, usually water, to dissolve the constituents of the gas), which could have resulted in a 99% removal of the gas; (b) absorption with chemical reaction (scrubbing the EtO with aqueous acid or alkali to achieve hydrolysis to ethylene glycol), which could also achieve a 99% removal rate; (c) absorption with oxidation, which could achieve a 99% removal of EtO; (d) direct flame oxidation (the controlling of EtO by thermal oxidation or combustion), which would result in atmospheric emissions of carbon dioxide and water vapour, resulting in a 99% removal of EtO upon discharge; (e) condensation (using refrigeration or chilling equipment), which had a removal rate of between 50-85% of EtO; and (f) reaction with solids (the removal of EtO by reaction with chemical solids held in a porous bed, usually used in conjunction with acid scrubbing), which claimed efficiencies of up to 99% in the removal of EtO. 87While Mr Kolding gave evidence that Unomedical had implemented minimisation methods to reduce the amount of EtO released into the atmosphere, the efficacy of these methodologies was debunked by Mr Court. Mr Kolding conceded that he could not dispute Mr Court's assessment in this regard. 88Mr Kolding made two significant concessions in relation to the practical measures that could have been implemented by Unomedical to avoid the harm to the environment. The first was that cost played no part in the decision by Unomedical not to earlier install a catalytic abatement system and it was practical to have installed a catalytic converter in 2001 when it moved its operations to the facility at Wilmette Place (at [243] and [249(f)]). Rather, it was Mr Kolding's belief that because its installation was not required by law, that it was not necessary to do so. The second concession was that Mr Kolding was aware that had Unomedical been operating in the United States or Denmark (where Unomedical's head office was located) it would have been mandatory to install air pollution control equipment to reduce its EtO emissions (at [249(e)]). 89I therefore find beyond any doubt that practical measures were available to Unomedical, which if implemented, would have avoided the environmental harm caused by the commission of the offence. Foreseeability of the Risk of Harm 90A factor bearing on the objective gravity of the offence is the extent to which Unomedical could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence (s 241(1)(c) of the Act). 91In my opinion, in light of the conclusions reached by the Court as to the state of Mr Kolding's knowledge of the potential harmful effects of EtO and the unreasonableness of his belief that it was not necessary for Unomedical to take any steps to minimise its air pollution during the charge period (at [234]), I have no hesitation in finding that Unomedical could reasonably have foreseen the harm caused or likely to be caused to the environment by its breach of s 128(2) of the Act. Control Over the Causes that Gave Rise to the Offence 92Another factor bearing on the objective gravity of the offence is the extent to which Unomedical had control over the causes that gave rise to its commission (s 241(1)(d) of the Act). It was not a matter of controversy, and I accordingly find, that as the owner and operator of the premises, Unomedical was at all times able to control the EtO emissions and was able to decide whether or not to implement the practical measures referred to above, including the installation of an abatement system (see, for example, at [146]). As such, there is no doubt that at all times Unomedical had control over the causes giving rise to the breach of the Act. Reasons for Committing the Offence 93The criminality involved in the commission of the offence is to be measured not only by the seriousness of what occurred but also by reference to the reasons for its occurrence (Axer at 366, Bentley at [237], Gittany at [140] and Rae at [47]). 94The prosecutor urged upon the Court a finding that Unomedical had committed the offence for financial gain inasmuch as it sought to obtain a commercial benefit by delaying the installation of, and hence payment for, an abatement system at the facility. If proven, this reason for committing the offence would increase its objective seriousness (s 21A(2)(o) of the CSPA and see Gittany at [141], Bentley at [246]-[247], Scahill at [82], Hudson at [78] and Rae at [49]). 95The evidence does not support any such finding. To the contrary, it was Unomedical's unequivocal and unchallenged evidence that the reason an abatement system was not installed during the charge period was not due to financial motivations (at [151] and [252(e)]). 96The prosecutor submitted that the Court should draw an inference, based on a document entitled "Notes to the Financial Statements for the year ended 31 December 2002", that by not installing a catalytic converter until August or September 2007, Unomedical enjoyed a financial benefit by avoiding or minimising the interest payments necessary to service a loan or overdraft facility to pay for the abatement system or, in the alternative, by earning interest on the unspent capital expenditure. Again there was insufficient evidence before the Court to draw such an inference on any standard of liability and I decline to do so. Conclusion on the Objective Gravity of the Offence 97Having regard to the nature of the offence; the high maximum penalty; the extent of the harm to the environment; the practical measures able to be taken to prevent the harm; the ability of Unomedical to control, abate or mitigate the harm; the reasonable foreseeability of harm likely to be caused by the commission of the offence; the extent to which Unomedical had control over the causes that gave rise to the offence, and the absence of any deliberate commercial motive in committing the offence, I find that the offence committed is of low objective gravity. Subjective Considerations 98A proportionate sentence requires the Court to take into account any personal or mitigating factors present (Gittany at [144] and the authorities cited thereat, and Rae at [55]. See also s 21A(3) of the CSPA). 99The subjective circumstances of Unomedical to be considered relevantly include: (a) any prior criminal record; (b) any plea of guilty; (c) any contrition and remorse; (d) Unomedical's good character, if any; (e) any cooperation with, and assistance to the regulatory authorities; (f) whether the harm caused by the offence was not substantial; (g) whether Unomedical is likely to reoffend; (h) whether Unomedical agrees to pay the prosecutor's costs; and (i) the financial means of Unomecial. Prior Criminality 100Unomedical has no prior convictions for any environmental offences (s 21A(3)(e) of the CSPA). Prior Good Character of Unomedical 101I accept, absent any evidence to the contrary, that Unomedical is, but for the commission of this offence, of good character (s 21A(3)(f) of the CSPA). Plea of Guilty 102Clearly Unomedical did not plead guilty to the offence and no discount can be applied to the penalty imposed (ss 21A(3)(k) and 22 of the CSPA). Contrition and Remorse 103In my opinion, no contrition or remorse has been expressed by Unomedical for the commission of the offence (s 21A(3)(i) of the CSPA). 104Unomedical submitted that it has accepted responsibility for its actions by speedily and efficiently installing the catalytic converter to reduce the amount of EtO emitted and that action to rectify the commission of the offence is "the clearest indication of contrition and remorse". 105I disagree. By installing the abatement system all that Unomedical did was comply with the law. Assistance to and Cooperation with the Prosecution by Unomedical 106There was ample evidence of the extensive and timely cooperation and assistance given by Unomedical to the prosecutor (ss 21(A)(3)(m) and 23 of the CSPA). For example: (a) Unomedical complied with three notices to provide information and produce records under s 193 of the Act served by the prosecutor; (b) Mr Kolding, Mr Brandon Buhler (the Operations Manager) and Mr Ross Halfacree (the Logistics and Supply Chain Manager) all submitted themselves to be interviewed by officers of the prosecutor; (c) Mr Kolding was at all times cooperative and helpful in the council's and the prosecutor's investigations; (d) Unomedical provided air emissions monitoring (the HLA reports) and modelling data (CALPUFF, invoiced at $20,000) at its own cost to the council, to the Department of Health and to the prosecutor. This material was adverse to Unomedical's interests; and (e) Unomedical agreed to statements of facts with the prosecutor both in respect of the liability hearing and the penalty hearing. 107As a consequence, Unomedical submitted that it was entitled to a discount in the vicinity of 20% to imposition of any penalty for the assistance by it to the prosecuting authorities, particularly when regard was had to the factors that the Court must consider pursuant to s 23(2) of the CSPA. 108In support it relied upon R v M [2005] NSWCCA 224 where the Court of Criminal Appeal quoted from its earlier decision in R v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474 (at [21]) (the passage is quoted in the paragraph immediately below). 109More recently the Court of Criminal Appeal has acknowledged a defendant's entitlement to a discount for assistance to authorities ( SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249 at [42] and FS v R [2009] NSWCCA 301; (2009) 198 A Crim R 383 at [14]-[19]). In FS the Court of Criminal Appeal stated the following principles (at [14]-[16]): 14 Assistance to authorities in the prosecution of offences is a public benefit and a public duty. Nevertheless, in the sentencing process, leniency is extended to offenders for assistance to authorities. It is not an uncommon practice. That leniency takes into account a number of factors, which were summarised in the High Court in the following manner: "[3] It is common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to take account of any threat to the offender's safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released. The relevant principles are discussed, for example, in R v Cartwright (1989) 17 NSWLR 243 and R v Gallagher (1991) 23 NSWLR 220. Atkinson J gave the appellant credit for her assistance to the authorities, her early plea of guilty, and other personal factors of no present relevance, in a combination of two ways. She imposed a lesser term of imprisonment than would otherwise have been the case (but not lesser to an extent that she considered would of itself fully recognise such factors), and she suspended the sentence. Her reasoning made it clear that, if she had not suspended the sentence, she would have fixed a shorter term of imprisonment." ( York v R [2005] HCA 60 ; (2005) 225 CLR 466 ; (2005) 79 ALJR 1919 per Gleeson CJ.) 15 His Honour Chief Justice Gleeson referred, after the passage cited immediately above, to two judgments of the Court of Criminal Appeal that discuss the relevant principles. In one of them, R v Gallagher (1991) 23 NSWLR 220, Gleeson CJ observed: "Those last-mentioned matters may, depending upon the circumstances, be very difficult to separate from other considerations which might arise quite apart from the matter of assistance to the authorities. In this case, for example, the appellant was entitled to receive, and received, credit for pleading guilty, and for the contrition which that plea of guilty reflected. It was also said to be to his credit that he had good prospects of rehabilitation. It seems hardly likely that these were subjective matters which were entirely separate from the matter of his assistance to the authorities. It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co- operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical." 16 The calculation of the amount of any such discount has developed over the last decade. Thus, in R v Pang [1999] NSWCCA 4 ; (1999) 105 A Crim R 474, Wood CJ at CL with whom Meagher JA and Barr J agreed, observed that: There is no fixed tariff for the reduction that should be given for assistance, and so far no guideline judgment has been delivered in this area. However, the discount customarily given in this State for assistance, has ranged between 20 and 50 percent of the sentence that would otherwise have been imposed. It should be pointed out, that the reference to percentage discounts for assistance is a reference to a combined percentage discount for both assistance and the utilitarian value for the plea of guilty associated with it: see R v M [2005] NSWCCA 224, per Buddin J, with whom James J and I agreed. 110I am inclined to agree that a discount is appropriate in the circumstances of this case. Not only should, as a matter of general principle, defendants be encouraged to, at all times, provide assistance to the investigating and prosecuting authorities, in the present case the not immaterial utilitarian benefit of Unomedical's cooperation - notwithstanding the absence of a guilty plea - ought to be recognised by discounting by 15% the penalty to be imposed. The Harm Was Not Substantial 111Consistent with the reasoning and findings of the Court expressed above in relation to the extent of the environmental harm occasioned by the commission of the offence, I find that the "injury, emotional harm, loss or damage" caused by the offence was not substantial (s 21A(3)(a) of the CSPA). Unomedical is Unlikely to Re-offend 112In light of the fact that the steriliser has been shut down, that no EtO is being used by or emitted from the facility and that Unomedical's environmental protection licence has been surrendered, I find that the propensity of Unomedical to re-offend to be negligible, if not non-existent (s 21A(3)(g) of the CSPA). Costs 113The prosecutor seeks the payment of its investigation and legal costs pursuant to s 257B of the Criminal Procedure Act 1986. These costs have been agreed in the amount of $140,000. 114Unomedical has agreed to an order that it pay the prosecutor's costs. 115The payment of the prosecutor's costs is an aspect of punishment (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and Rae at [68]). There is no question that this Court is empowered to order a defendant to pay the prosecutor's costs as specified or as may be determined under s 257G of the Criminal Procedure Act 1986 (see s 257B of that Act). 116In Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Biscoe J noted that in this jurisdiction an order for costs against a defendant is routinely made. Thus his Honour opined (at [50]): Consequently, payment of the prosecutor's costs is a constant aspect of punishment such that it is embedded in the general pattern of sentencing for all offences. Therefore, of itself, it does not generally seem to be a reason for reducing a penalty in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence. Something more would seem to be required. 117I do not construe his Honour's comments as resiling from the general principle stated in Barnes that the payment of a prosecutor's costs may be considered in the determination of the appropriate penalty, including as a factor that acts in reduction of any penalty imposed. I have therefore taken this factor into account (Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39 at [139]). Capacity to Pay a Fine 118Barnes also stands as authority for the proposition that payment of the prosecutor's costs may also impact on the financial means of a defendant to pay a fine (at [66]-[70], which is a consideration under s 6 of the Fines Act 1996 (see Rahme v R (1989) 43 A Crim R 81 at 87, Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [95]-[96] and Leppington at [49]). 119There is no evidence before the Court that would suggest that Unomedical would be unable to pay any monetary penalty imposed by the Court (s 6 of the Fines Act 1996). Conclusion on Subjective Considerations 120The subjective considerations of Unomedical operate to mitigate the penalty to be imposed to a reasonable degree. The Appropriate Sentence to be Imposed on Unomedical 121The imposition of a sentence serves a number of purposes. As s 3A of the CSPA indicates, these purposes include retribution and denunciation, as well as deterrence, both specific and general. General Deterrence 122A significant component in the determination of any penalty for the commission of a criminal offence is that of deterrence. One of the purposes of the Court imposing a sentence is to prevent crime by deterring both the offender and any other person from committing similar offences (s 3A(b) CSPA). 123The penalty must be sufficient to deter others who, by oversight or inadequacy in process systems, risk committing an offence against the Act in the hope that should the oversight or inadequacy be exposed, only nominal penalties will be applied. 124In Thomson v Hawkesbury City Council [2009] NSWLEC 151 I quoted Gittany in relation to the applicable principles with respect to deterrence as a component of an appropriate penalty for offences ( Thomson at [114]). I adopt those principles for present purposes (see also Rae at [8]). 125The objects of the Act are directed not only at preventing deliberate or negligent pollution but also at encouraging manufacturers to take positive measures to ensure that pollution does not occur. This is because as Mahoney JA observed in Axer that (at 359): The community has adopted a stern policy against pollution. The legislative scheme requires that proper, and strict, precautions be taken by those whose activities may cause proscribed pollution... The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. 126Accordingly, penalties must be imposed that are substantial enough to encourage corporations engaged in manufacturing processes to adopt best practical means to prevent or minimise pollution, and in particular air pollution (Axer at 359 and Bentley at [139]-[141]). The deterrent effect of a fine must also send an important message to companies using toxic materials in their production processes to avoid, or at the very least minimise, harm to the environment by their activities. 127It must also ensure that any fine imposed outweighs any gains by not doing so and thus does not appear to be a mere business cost of engaging in unlawful polluting activity (Fulton Hogan at [190]). 128In short, a person will not be deterred from committing environmental offences by the imposition of nominal fines (Bentley at [140]). 129I am therefore of the opinion that general deterrence is a relevant consideration in the determination of Unomedical's penalty. Specific Deterrence 130Unomedical submitted, which I accept, that specific deterrence is not a relevant consideration in the determination of an appropriate penalty in the circumstances of this case. This was because the offence was an isolated incident for a company that had, until the commission of this offence, operated faultlessly. To this consideration must be added the extremely low, if not non-existent, likelihood of recidivism discussed above (at [112]). Retribution and Denunciation 131The penalty must be such as to ensure that retribution and denunciation, which are part of the purpose of sentencing (s 3A(a) and (f) of CSPA), are properly addressed. 132The sentence of this Court is a public denunciation of the conduct of the offender that must ensure that the offender is held accountable for his or her actions and is adequately punished (Rae at [8]-[9] and Environment Protection Authority v Hanna [2010] NSWLEC 98 at [34]). The sentence imposed by the Court must take into account the moral outrage of the community ( Bentley at [143]). The community is entitled to expect that the Court will exercise its discretion to impose penalties commensurate with the community's views. Accordingly, I take these elements into account. Consistency in Sentencing 133A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany at [179]-[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range (Gittany at [182]). 134Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion ( Axer at 365 and Cabonne Shire Council at 312). 135Moreover, as the High Court has recently reminded sentencing courts in Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465 (at [53]-[54], footnotes omitted and emphasis added): 53. Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken, however, in using what has been done in other cases. 54. In Director of Public Prosecutions (Cth) v De La Rosa , Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added) ... 136As was noted in Unomedical (No 3), this is the first case that deals with a breach of s 128(2) of the Act (at [23]). Thus, as the prosecutor correctly submitted, there does not readily exist comparable cases that the Court may have regard to in ascertaining a general pattern of sentencing. 137The predecessor to s 128(2) of the Act was s 15(2) of the Clean Air Act 1961 ("the CAA") for scheduled premises and s 19(2) of that Act for non-scheduled premises. Section 19(2) of the CAA was similarly untested. 138The only case dealing with a breach of s 15(2) of the CAA was State Pollution Control Commission v A C Hatrick Chemicals Pty Ltd (1992) 76 LGRA 346, where the defendant company was convicted of two offences, including a charge under s 15(2) of the CAA that the defendant did not conduct a process in or upon such premises by such practical means as was necessary to prevent or minimise air pollution in that it permitted the emission of a pungent odour from the premises. The company was fined $35,000 in circumstances where it had pleaded not guilty and where there were practical steps able to be taken in order to prevent the odour from escaping the premises (the maximum penalty was $125,000). 139However, given that the statutory scheme and the maximum penalty were sufficiently different under the CCA, that case offers only limited assistance, in my view, to the present sentencing task before the Court. 140Albeit concerned with breaches of s 129 of the Act, the Court notes, by way of comparison, the sentences imposed for air pollution offences in relation to the emission of offensive odours. 141Unomedical submitted that because offensive odour cases only apply to scheduled premises and include a subjective element of "harmfulness" or "unreasonable interference", any penalty that the Court imposes in this case should be considerably lower. I do not necessarily accept this to be the case. 142The Court has also had regard to sentences imposed for breaches of environmental protection licences that resulted in air pollution. In my opinion, these cases are instructive notwithstanding that Unomedical was not operating under such a licence at the time of the commission of the offence and, therefore, no emission standard, and thus breach of that standard, applied to it. 143First, in Environment Protection Authority v Nationwide Oil [2002] NSWLEC 201 the defendant company breached s 129(1) of the Act by allowing an odour to be emitted from its premises due to a spill of light gas oil, contrary to a condition of an environment protection licence. The defendant also breached s 120(1) of the Act. The maximum penalty under the Act at the time for each offence was $250,000. In taking into account the totality principal and the discount for an early guilty plea, the defendant was fined $50,000 for the s 129(1) breach, with a total fine of $80,000 for both offences. The defendant also agreed to pay the prosecutor's costs in the amount of $17,000. 144Second, in Environment Protection Authority v Illawarra Coke Co Pty Ltd [2002] NSWLEC 21; (2002) 118 LGERA 451 the defendant was the occupier of premises at which a scheduled activity was carried on under an authority conferred by an environment protection licence. It caused the emission of an offensive odour on three separate occasions. The defendant was therefore charged with three breaches of s 129(1) of the Act. The maximum penalty at the time was $250,000. The odour was described as offensive and when particularly strong degraded the amenity of the environment causing headaches, nausea and irritating eyes and throats. The defendant was fined a total of $70,000 for all three breaches in circumstances where the defendant had one previous conviction, pleaded guilty at an early stage and cooperated with the authorities. The defendant was also ordered to pay the prosecutor's costs in the sum of $25,000. 145Third, in Environment Protection Authority v Burrangong Meat Processors Pty Ltd [2003] NSWLEC 102 the company, which operated an abattoir in Young, was charged with four offences. The first offence involved a breach of s 64(1) of the Act, namely, that it contravened a condition of its environment protection licence by failing to operate its sewerage treatment system in a proper and efficient manner. This offence involved an excess of effluent being pumped through the system that produced offensive odours. The other three offences involved contraventions of s 129(1) of the Act on the basis that the defendant was the occupier of premises at which a scheduled activity was carried on under the authority of a licence and which caused an offensive odour to emanate from the premises. The Court considered that a fine of $50,000 was warranted for each offence, which was then reduced to a total penalty of $58,875 for all four offences taking into consideration the totality principle and mitigating factors, which included that the defendant had pleaded guilty and had agreed to pay $930,000 to undertake works aimed at minimising pollution. In imposing the penalty the Court took into account the fact that the defendant had a high level of culpability, the offences were foreseeable and there were practical measures that the defendant could have put into place to prevent the offences from occurring. 146Fourth, in Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 the defendant pleaded guilty to an offence against s 129(1) of the Act being the emission of an offensive odour from occupied premises at which a scheduled activity, being a livestock slaughtering rendering plant, was carried on under the authority of a licence. The maximum penalty under the Act at the time was $250,000. The defendant was ordered to carry out a specified project under s 250(1)(c) of the Act being the provision of a park at the cost of $32,000 and to pay the prosecutor's costs in the sum of $40,000. The penalty was imposed in circumstances where there were practical steps that the defendant could have taken to prevent the emission of the odour, the offence was foreseeable, the defendant had control over the causes of the offence, the defendant pleaded guilty and the defendant had one prior conviction. 147Fifth, in Environment Protection Authority v Shoalhaven Starches [2006] NSWLEC 685 the defendant was the occupier of premises at which scheduled activities were carried on under the authority of a licence and was found guilty of emitting offensive odours from waste water ponds on the premises in contravention of s 129(1) of the Act. The maximum penalty under the Act at the time was $250,000. In addition to being ordered to pay the prosecutor's costs in the amount of $235,000, the defendant was fined the sum of $125,000, ordered to place a publication notice and to carry out an environmental audit. This penalty was imposed in circumstances where the defendant pleaded not guilty, the odour was not toxic, the emission of the odour was reasonably foreseeable and the defendant had prior convictions. 148In relation to a breach of s 124(b) of the Act, sixth, in Environment Protection Authority v Caltex Refineries (NSW) Pty Ltd [2006] NSWLEC 335 the defendant company pleaded guilty and the Court therefore considered that a fine of $77,000 was an appropriate penalty (the maximum penalty was $250,000). The defendant was also ordered to pay the prosecutor's costs in the sum of $81,311. The offence involved the spillage of a waste by-product from the refinery that had a rotten egg odour and in turn caused black smoke to be emitted from the refinery's furnace, which induced symptoms of nausea, headaches and diarrhoea. The Court found that there were practical measures that could have been taken to prevent the incident, the harm was foreseeable and the defendant had inadequate risk assessment processes in place. The Court also took into account mitigating factors including an early guilty plea, an expression of contrition, and the defendant's cooperation with authorities. 149Seventh, in Environment Protection Authority v Coastal Recycled Cooking Oils Pty Limited [2008] NSWLEC 242 on two occasions the defendant company breached a licence condition concerning its waste water system resulting in the emission of an odour from a storage tank contrary to s 64(1) of the Act. The first offence was dismissed pursuant to s 10 of the CSPA because it was a first offence, trivial in nature, the problem was remedied and it caused minimal amenity impact. However, the second offence was considered to be more serious. The odour emitted was highly offensive, but it was found to cause minimal environmental impact. A fine of $30,000 was ordered, which was reduced to $18,000 in light of the following mitigating factors: the defendant's good character; its remorse; its early guilty plea; the absence of prior convictions; its cooperation with authorities and its efforts at remediation. The fine was directed towards an environmental project pursuant to s 250 of the Act. 150Eighth, in Environment Protection Authority v Ghossayn [2009] NSWLEC 181 the defendant was the director of a company and pleaded guilty to offences against s 144 and s 126(1) of the Act. In relation to the offence against s 126(1) of the Act, namely, that the occupier of premises dealt with materials at those premises in a way that resulted in air pollution, the defendant was fined $60,000 which was reduced due to mitigating factors to $42,000, with the total fine for the two offences being $51,000 (the maximum penalty for an individual at the time was $250,000 for each offence). The defendant was also ordered to pay the prosecutor's costs of the proceedings in the sum of $40,000. The penalty was imposed in circumstances where the environmental harm was assessed as low but continued for a long duration, there were practical measures the defendant could have taken to avoid the harm, the risk was foreseeable, the defendant had control over the causes, there was a financial imperative for the commission of the offence, the defendant had prior convictions, there was a plea of guilty, and the defendant cooperated with authorities. 151Ninth, in Environment Protection Authority v Transpacific Industries Pty Limited; Environment Protection Authority v Transpacific Refiners Pty Limited [2010] NSWLEC 85 the defendant pleaded guilty to two offences under s 64(1) of the Act and one offence under s 66(2) of the Act. In relation to the two offences against s 64(1), the defendant was fined $6,500 and $9,750. This was in addition to being fined $14,000 for the offence against s 66(2) of the Act, ordered to place a publication notice and ordered to pay the prosecutor's costs of the proceedings in the sum of $40,000 (the maximum penalty was $1,000,000 for both offences). The offences against s 64(1) concerned breaches of a licence condition relating to the emission of certain gaseous substances into the atmosphere on two occasions. The penalty was imposed in circumstances where the potential environmental harm was considered to be negligible, the risk of harm was foreseeable, the defendant had control over the causes, the defendant had no prior convictions, the defendant was of prior good character, there was an early plea of guilty, the defendant expressed contrition and remorse and the defendant cooperated with the authorities. 152Finally, in Transpacific Industries Pty Limited , I summarised the decisions of Environment Protection Authority v Causmag Ore Company Pty Limited [2009] NSWLEC 164, including the dust emissions cases cited therein (at [71]-[75] of Causmag ), and Environment Protection Authority v Forgacs Engineering Pty Limited [2009] NSWLEC 64 where the fines imposed were $20,000 and $45,000 respectively (the maximum penalty was $1,000,000 in both cases) (at [135] and [139]): 135. ...A number of dust emission cases were reviewed by Pain J in Environment Protection Authority v Causmag Ore Company Pty Limited [2009] NSWLEC 164 (at [71]-[75]), which was itself a dust emission case. The breach in that case concerned a failure to maintain plant in a proper and efficient condition by failing to repair, and/or replace filter bags and/or fabric filters that had become damaged or deteriorated. In addition to a publication order, the Court fined the defendant the sum of $20,000 in circumstances where the defendant pleaded guilty at an early opportunity, expressed contrition and remorse, cooperated fully with the prosecutor, was of good corporate character, was found to be unlikely to reoffend, had prior convictions similar to the offence charged and was suffering considerable financial difficulties. The maximum penalty was $1,000,000. ... 139. In Environment Protection Authority v Forgacs Engineering Pty Limited [2009] NSWLEC 64, the defendant was ordered to pay $45,000 (the maximum penalty was $1,000,000) to Newcastle City Council for the purpose of replacing timber decking over mangroves. A publication order and costs order were also imposed by the Court. The proceedings concerned a failure by the defendant to prevent the emission of particles from a ship repair business in breach of its licence conditions. There was both actual harm due to amenity impacts and potential ecological harm. The defendant pleaded guilty at the earliest opportunity and a number of other mitigating factors were present. Publication Order 153The parties agreed that it was appropriate that a publication order be made under s 250(1)(a) of the Act. The parties also agreed on the terms of the order and the terms of the notice to be published. 154In Waste Recycling and Processing Corporation Preston CJ noted that the Court had made publication orders in a number of cases and described their utility as follows (at [242] and see also Environmental Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23 at [192] and Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264): 242 Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma: see B Fisse, "Reconstructing Corporate Criminal Law: Deterrence, Retribution, Fault and Sanction", (1982-1983) 56 S Cal L Rev 1141 at 1147, 1153, 1154, 1156, 1166, 1220, 1229, 1230, 1240. See also B Fisse, "The Use of Publicity as a Criminal Sanction against Business Corporations" (1971-1972) 8 Melb ULR 107; M Rankin and P Finkle, "The Enforcement of Environmental Law: Taking the Environment Seriously" (1983) 17 U Brit Colum L Rev 35 at 49; and D Chappell and J Norberry, "Deterring Polluters: The Search for Effective Strategies" [1990] UNSWLawJl 5; (1990) 13 UNSWLJ 97 at 108. 155Because a publication order is made in addition to, rather than instead of, any penalty (Environment Protection Authority v Incitec Limited [2003] NSWLEC 381; (2003) 131 LGERA 176 at [58]-[59] cited in Causmag at [78]) it ought not be considered in determining what penalty should be imposed. 156In the circumstances of this case, I find the making of a publication order in the terms of the notice agreed to by the parties to be appropriate. Appropriate Penalty to Be Imposed 157Synthesising both the objective circumstances of the offence as mitigated by the subjective circumstances of Unomedical, including the 15% discount applied for Unomedical's cooperation with, and assistance to, the prosecuting authorities, and having regard to the existing pattern of sentencing, I consider that an appropriate penalty to be imposed is a fine in the sum of $90,000. Orders 158For the reasons articulated above, the Court makes the following orders: (1) Unomedical is fined the sum of $90,000; (2) pursuant to s 257B of the Criminal Procedure Act 1986 Unomedical is to pay the prosecutor's costs of the proceedings in the amount of $140,000; (3) within 28 days of the date of this order, pursuant to s 250(1) of the Act, Unomedical, at its expense, is to place a notice in the first 12 pages of the early general news section of the following publications, at a minimum size of 10cm x 20cm in the form attached at Annexure 'A': (a) The Manly Daily ; and (b) The Sydney Morning Herald ; and (4) the exhibits are to be returned. ********** Annexure 'A' UNOMEDICAL PTY LTD Guilty of air pollution On 12 October 2010 the New South Wales Land and Environment Court found Unomedical Pty Limited ("Unomedical") guilty of air pollution at Mona Vale, NSW. Until April 2010, Unomedical operated a factory at Mona Vale that manufactured single use medical devices. Unomedical used ethylene oxide, a potentially carcinogenic gas, in the process of sterilising its products. Ethylene oxide was released into the atmosphere from the factory. Unomedical was charged with failing to carry out its operations by such practicable means as were necessary to prevent or minimise air pollution from the factory. In August 2007, Unomedical installed a catalytic abatement system which greatly reduced the quantity of ethylene oxide emitted. Unomedical ceased all sterilising activities at the site in March 2010. Unomedical pleaded not guilty to the charge. On 3 August 2011, Unomedical was ordered by the Land and Environment Court to: 1. pay a fine of $90,000; 2. pay the prosector's costs of $140,000; and 3. place this publication notice (paid for by Unomedical). Unomedical was prosecuted by the Environment Protection Authority, part of what was previously the Department of Environment, Climate Change and Water (NSW). 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: 05 August 2011