Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 Hearing dates: 2 September 2011 Decision date: 07 September 2011 Jurisdiction: Class 5 Before: Pain J Decision: 1. The Defendant is convicted of the offence charged. 2. The Defendant, pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997 (POEO Act), is to pay to Hunter Central Rivers Catchment Management Authority (the CMA) within 28 days of this order, the amount of $78,000 to be used for general environmental purposes to deliver outcomes against the Management Targets set out it in the CMA Catchment Action Plan (the payment). 3. The payment is not to be used for works on the Defendant's land or for works in relation to any agreement entered into between the Defendant and the CMA. 4. All future public references by the Defendant to the payment above shall be accompanied by the following passage: "Sibelco Australia's contribution to the funding of the Hunter Central Catchment Management Authority is part of a penalty imposed on it by the Land and Environment Court of NSW after it was convicted of polluting waters, an offence against s120 of the Protection of the Environment Operations Act 1997." 5. Pursuant to s 250(1)(a) of the POEO Act, the Defendant, within 21 days of this order, is to place a notice in the first five pages of the following publications: (a) Singleton Argus newspaper; (b) Scone Advocate newspaper; and (c) Australian Mining monthly magazine,at a quarter of a page in size in the form of Annexure A.6. Within 35 days of the date of these orders, the Defendant is to provide to the Prosecutor a complete copy of the page of the publications in which the notice appears. 7. The Defendant is to pay within 28 days of this order the Prosecutor's costs as agreed in the following amounts: (a) legal costs of $25,270; (b) investigation costs pursuant to s 248 of the POEO Act of $9,730. Catchwords: ENVIRONMENTAL OFFENCES - guilty plea - water pollution - unintentional discharge of sediment laden water into creek - sentence - consideration of objective and subjective factors - actual and potential environmental harm caused by the pollution - offence in the low to moderate range of objective gravity - defendant otherwise of good character - early guilty plea - appropriate to make alternative order in lieu of fine - order for payment to environmental organisation for use for general environmental objectives made - publication order made Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A Protection of the Environment Operations Act 1997 s 3, s 120, s 241(1), s 244(3), s 248, s 250(1)(a), s 250(1)(e) Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 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 Environment Protection Authority v Baiada Poultry Pty Limited [2008] NSWLEC 280; (2008) 163 LGERA 71 Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 Environment Protection Authority v Boral Australian Gypsum Ltd [2009] NSWLEC 26 Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31; (2009) 165 LGERA 383 Environment Protection Authority v Caltex Refineries (NSW) Pty Ltd [2008] NSWLEC 194 Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732 Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255 Environment Protection Authority v George Weston Foods Ltd [2010] NSWLEC 120 Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77 Hili v R; Jones v R [2010] HCA 45; (2010) 204 A Crim R 434 Hoare v R [1989] HCA 33; (1989) 167 CLR 348 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 R v Carroll [2008] NSWCCA 218; (2008) 188 A Crim R 253 R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Sibelco Australia Limited (Defendant) Representation: Mr R Fox (solicitor) (Prosecutor) Mr P Clay (Defendant) Office of Environment and Heritage, Department of Premier and Cabinet (Prosecutor) Sparke Helmore (Defendant) File Number(s): 50390 of 2011