Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 Hearing dates: 14, 15 July 2011 Decision date: 19 April 2012 Jurisdiction: Class 5 Before: Craig J Decision: 1. The defendant is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997, as charged. 2. The defendant is fined the sum of $112,500. 3. The defendant must pay the prosecutor's legal costs of the proceedings, agreed in the sum of $63,000. 4. The defendant must pay the prosecutor's investigation costs under s 248 of the Protection of the Environment Operations Act, agreed in the sum of $314. 5. The defendant, at its expense, and pursuant to s 250(1)(a) of the Protection of the Environment Operations Act, must, within 28 days of the date of this order, cause a notice in the form of Annexure "A" to be placed within the first 12 pages of the following newspapers at a minimum size of 10cm x 20cm: (i) the Sydney Morning Herald in the early general news section; and (ii) the Mudgee Guardian. 6. Exhibits may be returned. Catchwords: ENVIRONMENTAL OFFENCES:- water pollution - s 120(1) of the Protection of the Environment Operations Act 1997 - release of sediment-laden water by unblocking a culvert beneath an embankment retaining that water - inadequate pumping capacity to move retained sediment run-off to dirty water storage dams - failure to carry out adequate erosion and sediment control works - potential for discharge of sediments identified before the offence was committed - plea of guilty - sentencing principles - utilitarian value of early guilty plea when evidence on sentence is contested - prior offence - application of the totality principle - publication order Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Environmental Planning and Assessment Act 1979 Protection of the Environment Operations Act 1997 Threatened Species Conservation Act 1995 Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2011] NSWLEC 36 Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93 R v AB [2011] NSWCCA 229 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Finnie [2002] NSWCCA 533 R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 R v Holder (1983) 3 NSWLR 245 R v M.A.K.; R v M.S.K. [2006] NSWCCA 381; (2006) 167 A Crim R 159 Regina v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Moolarben Coal Operations Pty Limited (Defendant) Representation: Mr D K Jordan (Prosecutor) Ms S A Duggan SC (Defendant) Department of Environment, Climate Change & Water (Prosecutor) Sparke Helmore Lawyers (Defendant) File Number(s): 50042 of 2010