Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 Hearing dates: 10, 11, 12 and 13 October 2011, 21 August 2012 (written submissions) Decision date: 18 September 2012 Jurisdiction: Class 5 Before: Pepper J Decision: Orders set out at [286] of the judgment. Catchwords: SENTENCE - offence by council of polluting waters - overflow of sewage into river - extraterritorial operation of Protection of the Environment Operations Act 1997 - application of De Simoni principle - no intent to pollute waters - limited environmental harm - prior criminality - late plea of guilty - substantial costs order payable - environmental services order in lieu of fine and publication order imposed. Legislation Cited: Clean Waters Act 1970, s 16 Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22, 23 Criminal Procedure Act 1986, ss 257B, 257G Interpretation Act 1987, ss 12, 33 National Parks and Wildlife Act 1974, s 118 Native Vegetation Act 2003, s 12 Protection of the Environment Operations Act 1997, ss 3, 64(1), 96, 109, 116, 120, 123, 128, 170, 203, 241 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 Blackwell v R [2011] NSWCCA 93; (2011) 208 A Crim R 392 Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 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 Cassidy v R [2012] NSWCCA 68 Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129 Chief Executive of the Office of Environment and Heritage v Rinaldo (Nino) Lani [2012] NSWLEC 115. Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 Environment Protection Authority v Albury City Council [2009] NSWLEC 169 Environment Protection Authority v Austar Coal Mine Pty Ltd [2011] NSWLEC 252 Environment Protection Authority v Baiada Poultry Pty Limited [2008] NSWLEC 280; (2008) 163 LGERA 71 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 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 Ecolab Pty Limited [2002] NSWLEC 206; (2002) 123 LGERA 269 Environment Protection Authority v Fulton Hogan Pty Ltd [2008] NSWLEC 268; (2008) 163 LGERA 345 Environment Protection Authority v George Weston Foods Limited [2010] NSWLEC 120 Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 Environment Protection Authority v Orange City Council [1995] NSWLEC 103 Environment Protection Authority v Pipeline Drillers Group Pty Ltd [2012] NSWLEC 18 Environment Protection Authority v Queanbeyan City Council [2010] NSWLEC 237; (2010) 182 LGERA 36 Environment Protection Authority v Ramsay Food Processing Pty Ltd [2010] NSWLEC 23 Environment Protection Authority v Ramsay Food Processing Pty Ltd (No 2) [2010] NSWLEC 175 Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 Environment Protection Authority v Snowy Hydro Limited [2008] NSWLEC 264; (2008) 162 LGERA 273 Environment Protection Authority v State of New South Wales [2010] NSWLEC 67; (2010) 174 LGERA 19 Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114; (2010) 174 LGERA 314 Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131 Environment Protection Authority v Waste Recycling and Processing Corporations [2006] NSWLEC 419; (2006) 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 La Fontaine v R (1976) CLR 62 Lipohar v R [1999] HCA 65; (1999) 200 CLR 485 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 NSW Sugar Milling Co-operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Pemble v R (1971) 124 CLR 107 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v Booth (NSW Court of Criminal Appeal, 30 September 1997, unreported) R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 R v Crump (NSWCCA, 30 May 1994, unreported) R v De Simoni (1981) 147 CLR 383 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Thompson v R [1989] HCA 30; (1989) 169 CLR 1 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Ward v R (1980) 142 CLR 308 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Queanbeyan City Council (Defendant) Representation: Mr J Glissan QC with Ms G Preston (Prosecutor) Mr R Mcllwaine SC with Mr T To Office of Environment and Heritage (Prosecutor) Herring & Associates (Defendant) File Number(s): 50080 of 2008 INDEX Topic Paragraph Number Queanbeyan City Council Pollutes Queanbeyan River [1] Uncontroversial Background Facts [5] The Council's Sewage Treatment System [6] Morisset Street Sewage Pumping Station [10] Upgrade of the Morisset Street Sewage Pumping Station [16] The First Prevention Notice [35] The Provision of Information and/or Records Notice [39] The Second Prevention Notice [42] The Telemetry System [49] The Overflow Incident on November 2007 Not the Subject of the Charge [55] The Overflow Incident the Subject of the Charge [66] Evidence of the EPA [86] Evidence of the Council [93] Expert Evidence as to Environmental Harm Caused by the Overflow [119] Sentencing Principles [124] The Objective Circumstances of the Overflow [130] Nature of the Offence [132] Maximum Penalty [135] Extraterritorial Operation of the Act [136] The Extent of the Environmental Harm Caused by the Overflow [154] State of Mind of the Council [168] Reasons for Committing the Offence [189] Foreseeability of the Risk of Harm [196] Control Over the Causes of Harm and the Practical Measures Available to the Council to Avoid It [208] The Offence is One of Moderate Objective Gravity [210] The Subjective Circumstances of the Council [212] Prior Criminality [214] Plea of Guilty [219] Contrition and Remorse [222] Good Character [231] Assistance to the Authorities [234] Costs [247] Conclusion on Subjective Considerations [250] The Appropriate Sentence to be Imposed on the Council [251] Deterrence [252] Denunciation and Retribution [257] Consistency in Sentencing [258] Conclusion on Penalty [280] Type of Penalty to be Imposed [281] Orders [286] Judgment Queanbeyan City Council Pollutes Queanbeyan River 1Following the decision of this Court in Environment Protection Authority v Queanbeyan City Council [2010] NSWLEC 237; (2010) 182 LGERA 36 (Queanbeyan No 1), Queanbeyan City Council ("the council") pleaded guilty to an offence against s 120(1) of the Protection of the Environment Operations Act 1997 ("the Act") in that, from 6.00pm on 4 November 2007 to 7.00am on 5 November 2007, it polluted waters. 2The pollution consisted of sewage entering and being placed in a position where it fell, descended or washed or being placed in a position where it was likely to fall, descend or wash, into the waters of the Queanbeyan River, and downstream thereof, due to a pump failure at the sewage pump station on Morisset St, Queanbeyan. 3Section 120 of the Act creates the following offence: 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. (2) In this section: pollute waters includes cause or permit any waters to be polluted. 4The council is now before the Court for sentencing. Having regard to the objective circumstances of the commission of the offence and the subjective circumstances of the council, in lieu of a fine, it is appropriate that an order be made that $80,000 be directed towards the fulfilment of an environmental services order, together with an order that the council pay the prosecutor's legal and investigation costs as agreed by the parties and an order directing the council to publicise both its commission of the offence and the imposition of this sentence. Uncontroversial Background Facts 5The facts in this matter were ultimately largely not in dispute and were contained in an extensive statement of agreed facts. The Council's Sewage Treatment System 6The council operates a sewage treatment system serving all urban and rural-residential areas of the Queanbeyan Local Government Area. The system includes a sewage treatment plant located at Oaks Estate in the Australian Capital Territory, 15 pumping stations and over 326km of reticulation network. 7Since November 2003, the management of the system has mainly been guided by a Strategic Business Plan for Sewerage adopted by the council. 8One of the sewage pumping stations serving Queanbeyan was located at Morisset St ("the Morisset St station") near the Queanbeyan River. 9Located in a park at Wanniassa St, 10m from the Queanbeyan River, was a retention structure that was connected to the Morisset St station. It was designed to retain sewage in the event of a pump failure in order to prevent a spill into the Queanbeyan River. The time needed to fill the retention structure varied depending on the amount, type and flow rate of sewage coming into the system and the influx of stormwater. Morisset Street Sewage Pumping Station 10The Morisset St station was constructed in the 1930s. At the date of the offence, the Morisset St station serviced a large proportion of the reticulation system, which had increased significantly as the population of Queanbeyan grew. 11Two pumps were installed at the Morisset St station as at the date of the offence, but only one could operate at a time, owing to the limitations in the capacity of the rising main and the available power supply. Further, the electrical infrastructure within the Morisset St station did not have the capacity to permit the installation of an automatic pump changeover system. 12Relevantly, on 4 November and 5 November 2007, only pump 1 was in operation. 13Each pump was able to move 300 litres of sewage per second against a 29.5m head. If a pump at the Morisset St station failed or was not in operation, there was a holding system to store untreated sewage in a well for a limited time (estimated to be 64 minutes of average dry weather flow ("ADWF")) to allow the council's staff to be notified of the failure, to respond to the failure and to reset the pump. 14The storage capacity of the station was estimated by the council to be 235m². If the storage capacity was exceeded untreated sewage would overflow from the retention structure in the Wanniassa St Park and could spill into the Queanbeyan River. 15The Morisset St station has subsequently been demolished and was replaced with a new pumping station in 2009. Upgrade of the Morisset Street Sewage Pumping Station 16In the mid 1990s, due to population growth, the council began to consider options for the upgrade or augmentation of the Morisset St station because excess capacity, particularly in times of wet weather, was becoming increasingly limited. 17The council initially engaged Fisher Stewart engineers to consider options for the augmentation of the capacity of the pumping station and, following receipt of their report in 1998, engaged Gutteridge Haskins & Davey Pty Ltd ("GHD") to undertake the preliminary design work. GHD initially prepared an Options Study in relation to designing and constructing augmentation works to the Morisset St station to cater for expected growth up until 2012, to comply with Environment Protection Authority requirements and to increase the retention capacity from 64 minutes to the required four hours. 18Based on the Options Study (specifically option 1B) GHD then prepared a comprehensive report, the Morisset Street Sewage Pumping Station Augmentation - Preliminary Sketch Plan Report ("the report"), dated February 2001. 19The report set out the preliminary design of the proposed works and examined the issues and options involved in completing the works. Option 1B required: The retention of the existing SPS and pumps, construction of a new pump station/storage tank, upgraded electrical switchgear, provision of emergency power supply, replacement of the existing rising main, upgraded inlet works, improvements to safety facilities and other miscellaneous works. 20 A timeframe to complete construction during 2001 was put forward by GHD. 21In the report GHD identified the following deficiencies at the Morisset St station: (a) the project had been initiated by a need to comply with the emergency storage requirement of four hours of ADWF at the sewage pumping station ("SPS"), as determined by the Environment Protection Authority ("the EPA"); (b) the Morisset St station only provided for a wet well storage of 64 minutes at the current ADWF; and (c) the pump controls and switchboard were located within the dry well on the first landing level some 3.3m below the roof level. This arrangement did not meet EPA requirements. In addition the following deficiencies existed: the duty pump was selected manually which did not allow automatic division of operating hours between the pumps; the main switchboard did not have any spare panel spaces for modification including provision of automatic pump changeover or parallel pump operation; the float switches needed frequent maintenance due to a tendency to be ragged up; and the telemetry alarm system did not differentiate between mains power failure and telemetry failure. 22The council did not implement the preliminary design prepared by GHD in the report. This was because it was determined in March 2004 that a further sewage treatment plant would need to be constructed to service the needs of the new subdivision catering for 15,000 residents at Googong. 23The council consulted with the then Department of Environment and Conservation ("DEC") regarding the proposal to construct a replacement pumping station with significantly increased capacity. 24Following this consultation, the council called for tenders for the preparation of a detailed design for the replacement of the Morisset St station. In February 2005, the council accepted the tender of Sinclair Knight Merz ("SKM"). 25In August 2005, SKM published a design report for the replacement of the Morisset St station and thereafter the council sought, by way of expressions of interest, tenders for the construction of the replacement Morisset St station. 26In June 2006, a tender by Ledonne Constructions Pty Ltd ("Ledonne") was accepted by the council. Ledonne expected completion of the construction of the Morisset St station by 28 May 2007. 27By May 2007, the construction of the replacement Morisset St station was only 25% complete. The delay was a result of the inability of a subcontractor engaged by Ledonne to drill to a sufficient depth for the replacement station. These delays were exacerbated by the need to redesign aspects of the replacement Morisset St station. As a result of the delay, Ledonne breached its contract with the council and the council subsequently claimed liquidated damages against it. 28A revised construction schedule was set with Ledonne for completion of the replacement pumping station by 15 December 2007. Relevantly, it was noted in the statement of agreed facts that if the council had terminated the contract with Ledonne, the date of completion of the replacement station would have extended well into 2008. 29The offence the subject of these proceedings occurred during the additional period provided to Ledonne for construction of the replacement Morisset St station. 30The replacement Morisset St station was not in fact completed until January 2009, due to further delays by Ledonne. The replacement station cost $6.8 million, taking into account the liquidated damages claim. 31Relevantly, the replacement station has four submersible pumps, which are configured to commence operating in stages, dependent on the level of effluent in the wet well, with two duty pumps operating simultaneously and the other two pumps on stand-by. 32Each pump has an operating capacity of 460 litres per second against a 31.5m head. 33If a fault is detected in the duty pair of pumps, the duty pair of pumps are stopped automatically and the stand-by pair takes over. Further, if a pump fails and/or effluent reaches a high water level in the wet well, an alarm is activated, which is sent by a new telemetry system to the council's control centre. In the event of a power failure, within 30 seconds two generators automatically start to provide sufficient power for two pumps to operate. 34The replacement Morisset St station has a capacity to store four hours of ADWF. The First Prevention Notice 35On 3 December 2003 and 9 April 2004, there were discharges of untreated sewage from the Morisset St station at various points within the Riverside Caravan Park ("the Caravan Park") on Morisset St. The sewage flooded areas of the Caravan Park that were occupied by, or immediately accessible to, the residents of the caravan park. The sewage also entered the stormwater system and flowed into the Queanbeyan River. 36Accordingly, on 28 May 2004, the EPA issued the council with a prevention notice pursuant to s 96 of the Act ("the first prevention notice") directing it to prepare a report documenting the history of the sewage overflows at the Caravan Park from December 2003 to April 2004; to assess the sewerage reticulation system in the area including the Morisset St station; and to develop an incident notification protocol. The report was to be submitted to the EPA by 6 August 2004. 37On 27 June 2004, there was a further spill of up to 100 litres of sewage into the Caravan Park caused by a collapsed pipe that blocked the reticulation system. 38On 12 and 21 July 2004, Mr Stephen Howard, on behalf of the council, responded to the first prevention notice noting that the cause of the spills was several screen trees planted within the Morisset St station; that the council had commissioned numerous consultant reports on the station; and that the augmentation of the station had been programmed for that financial year. Further, he stated that the telemetry system provided the council with a warning of 30 minutes before an event occurred and attached the council's Sewer Overflow Notification Procedure, which required immediate notification to the Department of Health and the EPA if the overflow was in "close proximity, drainage or tributaries to a waterway where there is a high recreational use example is the Queanbeyan River between the months of November 1 each year and until the end of February each year inclusive". The Provision of Information and/or Records Notice 39On 4 August 2005, the council notified DEC that there was another overflow incident at the Caravan Park caused by a failure at the Morisset St station. The spill caused 11,000 litres of untreated sewage to spill from the system into the Queanbeyan River. The two spill points were a manhole within the Caravan Park and the corner of Atkinson St and Wanniassa St. 40The council was served with a notice to provide information and/or records by DEC dated 18 August 2005 ("the information notice"). 41On 9 September 2005, the council responded by letter to the information notice. The letter noted that the sewage spill within the Caravan Park was caused by the failure of a 300mm diameter rising main within the Morisset St station, which was an unexpected occurrence that could not be identified through visual inspection; that since the incident the council had conducted a risk assessment of the station infrastructure and would purchase a third pump, which would be held at the station to be used if either pump failed; and that the council was investigating the option of relocating discharge points to less significant areas. The Second Prevention Notice 42On 15 February 2006, there was an additional overflow incident at the Caravan Park with the overflow entering the Queanbeyan River. 43A letter to DEC from Mr Howard at the council dated 22 February 2006 referred to the council's intention to resolve "issues with the Morisset Street Pump Station retention times" by the augmentation of the pump station. 44On 28 February 2006, after the discharge on 15 February 2006, DEC issued another prevention notice, which was varied on 1 March 2006 ("the second prevention notice"). A letter attached to the second prevention notice signed by Mr David Bell on behalf of DEC, stated that "the DEC is aware that Council is committed to addressing the inadequacy of the sewerage system at the Morisset Street Pump Station. However, progress towards re-establishing adequate capacity in the system has been limited and too slow." Relevantly, the prevention notice required the council to: (a) investigate and identify "the most appropriate surcharge location". That is to say, the most appropriate location for an overflow structure; (b) produce and provide to the EPA a Surcharge Investigation Report identifying the "most appropriate surcharge location" and provide "a schedule of works to implement the preferred surcharge location as identified"; (c) report to the EPA on the actions taken to address sewage connection in the Caravan Park; and (d) prepare a capacity augmentation plan for the Morisset St station and associated infrastructure. 45The council responded to the second prevention notice in a letter by Mr Howard dated 21 April 2006. In that letter the council identified a location between Morisset St and Wanniassa St as the most appropriate surcharge location for an underground retention system that was to: ...have a capacity of 24.8 /m3 or 24800 litres and [be] constructed of four 1800mm diameter concrete pipes laid horizontally in the ground with a 450mm concrete diameter pipe surcharging into a [sic] earth bund. 46The letter also detailed the steps that the council intended to implement in order to augment the Morisset St station capacity. 47Mr Howard took into account the following safeguards: (a) sewer pumping stations containing two pumps usually have a pump controller integrated with the electrical switchboard; (b) if the pumping station failed, an alarm would sound on the telemetry system and sewage would be stored in the pipes while the council responded to the alarm and restarted the pump; (c) a telemetry system installed by Rad-Tel Systems Pty Limited ("Rad-Tel") with a backup battery, would allow an alert to be issued by text message at any hour of the day or night; (d) when a sewer filled near capacity or when the power went out, an alarm immediately went to the Rad-Tel system, which sent a text message to the on-call supervisor; (e) the telemetry system was a double redundancy system having two dedicated computers located at separate offices of the council that were linked by radio telemetry, mirroring each other. In addition, laptops were kept permanently at the homes of the council's Manager of Engineering Operations and Water and Sewer Supervisor, which provided the capability to monitor and operate systems remotely; and (f) if the telemetry system failed the council staff would be directed to monitor the pumping stations on an hourly basis until the telemetry system was again operative or by manning the depot outside of business hours. 48As a result of the discharges, the council, in consultation with the EPA, designed and installed additional storage capacity in the reticulation system and a controlled discharge point at Wanniassa St Park. The installation of the additional storage was a temporary solution pending the replacement of the Morisset St station. The Telemetry System 49At the date of the offence, the Morisset St station was monitored by the council's telemetry system supplied by Rad-Tel. Rad-Tel installed the original telemetry system in the early 1990s and, while components of this system had been upgraded, many components were still original as at the date of the offence. 50The system at Morisset St station was designed so that if the pumps failed, the level of water within the station would rise, triggering inbuilt alarms. 51The telemetry system is an alarm system that initiates an alert by radio signal to the council computer located at the station. This alert flashes on the council's computer system and triggers an audible alarm until the problem is resolved. If the operator does not clear the alarm, the computer sends an SMS text message to a mobile telephone nominated by the council. 52The audible alarm at the council's depot at Ellerton Dr had been disabled at the request of the council as at the date of the offence due to the annoyance it caused the council's employees. 53The council was supplied with two laptops by Rad-Tel for remote access to the telemetry system. These laptops enabled the council to remotely dial in and monitor the pumps at the Morisset St station. The council's staff were trained in the operation and configuration of the dialler call out system and the use of the laptops during workshops conducted by Rad-Tel. One laptop was designated to Mr Darren Laws and the other to Mr Howard (who, as at the date of the offence, was no longer employed by the council and whose laptop could not be located). 54The Morisset St station telemetry system log files recorded when the pumps were working and also whether there was a Pump Failure Alarm, a Power Fail Alarm or a High Water Alarm. The word "ACTIVE" in the Morisset St station log file indicated that an alarm had been activated. The Overflow Incident on November 2007 Not the Subject of the Charge 55On Sunday, 4 November 2007, at approximately 5.54am (Australian Eastern Standard Time, or "AEST") or 6.54am (Daylight Savings Time, or "DST"), Morisset St station pump no 1 failed. A Pump Fail Alarm was activated, however, the telemetry system SMS failed to engage and no text message was sent to the council's on-call supervisor's mobile phone. 56On 4 November 2007 at 12:30pm, Mr John Pearson, the on-call supervisor, received a telephone call from a member of the public notifying him that sewage was flowing from a council manhole into the Queanbeyan River. 57The council's on-call plumber, Mr James Howard, and labourer, Mr Doug Daniels, were notified of the discharge and attended the scene between 1.00-1.30pm DST in order to reset pump no 1. 58The Morisset St station pump was reset according to the pump records at 1.08.58pm DST. 59The Morisset St station telemetry system log files on 4 November and 5 November 2007 recorded no Power Fail Alarms. 60The pump records for the overflow incident on the morning of 4 November 2007 indicated the following: (1) 6.54.05 (am) Pump No 1 FAIL alarm ACTIVE (2) 6.54.08 (am) The Morisset Street SPS Pump 1 OFF (3) 8.47.17 (am) High Water Alarm for Pump 1 ACTIVE until 3.08 (4) 13.08.42 (pm) to 13.08.48 (pm) High Water Alarm for Pump 1 NORMAL briefly (5) 13.08.48 (pm) High Water Alarm for Pump 1 ACTIVE (6) 13.08.52 (pm) Pump 1 FAIL Alarm NORMAL (7) 13.41.47 (pm) High Water Alarm for Pump 1 NORMAL 61Mr Pearson went to the council depot in order to investigate the problem with the telemetry system. Mr Evan Scott, an employee of Rad-Tel, suspected a faulty modem and, at 5.54pm, advised Mr Pearson to reboot the computer in order to free up the modem and test the SMS alert system. This did not resolve the problem. 62Mr Pearson notified Mr Steven Wells, the council's Special Projects Officer, that although the alarm had been activated, no SMS text alert had been received. Mr Wells attended the depot on 4 November 2007 but similarly could not rectify the problem with the telemetry system. Mr Wells spoke to Mr Scott at 7.00pm for 18 minutes when Mr Wells was in front of the computer at the depot and Mr Scott talked him through rebooting the computer. 63Mr Pearson left the depot knowing that the problem with the SMS notification had not been fixed. Mr Pearson was not trained to remotely dial in and monitor the pump at the Morisset St station using the laptops and no arrangements were made with those in possession of the laptops to remotely dial in and monitor the pump. However, the telemetry system was operational when Mr Pearson left the depot. 64The problem with the telemetry system could be neither identified nor rectified. Similarly, the reason for the failure of pump no 1 could not be identified. 65Mr Pearson did not call his supervisor, Mr Bill Webb, to advise him of the malfunctioning telemetry system over the weekend of 4 and 5 November 2007. The Overflow Incident the Subject of the Charge 66On the evening of 4 November 2007, Morisset St station pump no 1 failed again. The High Water Alarm was activated but again the telemetry system did not activate and no text message was sent to the on-call supervisor. 67The pump records revealed as follows: 4 November 2007 (1) 19.36.18 (pm) Pump 1 FAIL alarm ACTIVE (2) 21.28.36 (pm) High Water Alarm ACTIVE 5 November 2007 (1) 6.47.53 (am) Pump 1 FAIL alarm NORMAL (2) 6.48.03 (am) Pump 1 ON 68At 6.15am on 5 November 2007, Mr Christopher Pritzler was driving across the bridge over the Queanbeyan River when he noticed liquid discharging from a grill on the corner of Morisset St and Wanniassa St. Mr Pritzler observed that the council berm had, in part, been washed away. He took photographs of the discharge. 69It was not until 6.45am on Monday, 5 November 2007, when Mr Darren Laws, the council's Water and Sewer Supervisor, arrived at the council depot for work that Mr Laws noticed that an alarm had been activated for the Morisset St station. Mr Laws reactivated the pump at approximately 6.48am. By this time the failure of pump no 1 had gone undetected for 11.2 hours. 70At 7.10am Mr Laws attended the Wanniassa St Park where the Morisset St station is located and observed that: (a) the ground around the overflow outlet was wet and that there was a slight trickle of untreated sewage still flowing towards the Queanbeyan River; * (b) part of the council's "constructed berm" located between the Wanniassa St overflow outlet and the Queanbeyan River had washed away; * (c) there was a clear track where the untreated sewage had recently flowed into the reeds located on the edge of the Queanbeyan River; and * (d) there were solids, paper and other sewage debris on the wet ground between the overflow outlet and the Queanbeyan River. 71Mr Laws contacted Mr Pearson and advised him that the Morisset St station had overflowed; that he had reset the pump; that he would need help to clean up the sewage; and that the EPA would need to be notified because it was not a minor spill. 72Mr Lance Gleeson, a backhoe operator, and Mr Michael Vlazlovski, a council truck driver, attended the Wanniassa St Park overflow outlet in order to commence the clean up process, which involved mechanically pumping the sewage out the grate to the holding chamber, raking the area to remove the top 100mm of soil, repairing the berm and spreading fresh soil. The area between the overflow outlet and the Queanbeyan River was also disinfected. 73Mr Laws supervised the clean up process. He reported to Mr Pearson that it was completed by approximately noon on 5 November 2007. 74The overflow incident the subject of charge caused sewage to discharge from the overflow outlet into the Queanbeyan River from about 10:43pm on 4 November 2007 until about 6.48am on 5 November 2007. The duration of the flow was 8 hours, 4 minutes and 25 seconds. The sewage flowed into the Queanbeyan River to the Molonglo River and to Lake Burley Griffin in Canberra. 75On 5 November 2007, Mr Pearson sent an email to Mr Webb, Mr Steven Wells and Mr Laws reporting that a pollution incident had occurred on 4 November 2007; that he had investigated the problem at the council depot and saw that several alarms had come through the system but had not transferred to the on-call phone; that he had contacted Mr Wells on 4 November 2007 and advised him of the problem; that Mr Wells attended the depot and that the telemetry system was unable to be rectified that night, with the result that there was a second pump failure "this morning with the same consequence." 76Later that day, Mr Webb had a conversation with Mr Nigel Sargent, the Regional Manager of DEC, to the following effect: Webb: My name is Bill Webb from Queanbeyan City Council. I am ringing to notify you of a sewer overflow from a manhole in Waniassa Street this morning. We've had crews down there this morning and cleaned it up. Sargent: Do you know how much sewage overflowed and if it made it to the river. Webb: I do not know much sewage discharged from the manhole or how much of it made it to the Queanbeyan River, but I do not think it was very much. Sargent: Do you know what caused the overflow. Webb: We are looking into the cause of the overflow, but we think a pump may have failed. Sargent: Can you please carry out an investigation into the overflow and report back to me. Webb: Yes, we will continue to investigate the cause and I will get back to you. 77Following this conversation, on 7 November 2007, Mr Webb emailed a report on the overflow to Mr Sargent. 78The report stated that it was estimated that the discharge commenced at 10.30am Sunday morning and was later reported by a member of the public. It went on to state that the duty supervisor responded immediately and the pumps were reset at 1.33pm Sunday. 79The volume of sewage that overflowed into the Queanbeyan River and travelled downstream was estimated to be between 915,336 and 1,112,830 litres. 80The length of the Queanbeyan River from the point of discharge to the New South Wales /Australian Capital Territory border is 1.228km. The Queanbeyan River then continues beyond the New South Wales /Australian Capital Territory border until it meets the Molonglo River. The Molonglo River flows into Lake Burley Griffin. 81On 8 November 2007, the east basin of Lake Burley Griffin and the Molonglo waterskiing area were closed. Members of the Lake User Group were notified of the pollution. These included various rowing and yacht clubs, boat hire and lake cruise businesses. 82On 9 November 2007, the whole of Lake Burley Griffin was closed until 16 November 2007. The waterskiing area, however, reopened on 13 November 2007. 83The council had a Sewer Overflow Notification Procedure that required notification to both the EPA and the Department of Health, but the council failed to notify the Department of Health of the sewage overflow the subject of the charge. 84On 29 July 2008, the EPA served the council with a notice under s 203 of the Act to nominate a corporate representative for the purpose of answering questions. The council nominated Mr Gregory Fogarty, the Director of Engineering and Recreation Services. 85On 22 August 2008, Mr Fogarty admitted in a general record of interview that over 4 November and 5 November 2007 there was a second pump failure of pump no 1 for over 11 hours, but stated that there was no overflow as a result. In addition, Mr Fogarty stated the following when questioned about whether, if a problem had been identified, it was part of the supervisor's role to implement additional measures to monitor the sewage pumping station: for something like this, that - after investigation, it became outside their control, there was [sic] other people that was [sic] more technically involved than them, that they didn't understand, that they would then go, "okay, well, the problem's been fixed at the moment, it should be right", "we'll have to fix it tomorrow" - that would have been their attitude. Evidence of the EPA 86The EPA relied on additional evidence contained in the affidavits of: (a) Mr Graham Nisbet, sworn 8 September 2011; (b) Ms Janice Taylor, sworn 31 October 2008; and (c) Ms Lyndal Walters, sworn 31 October 2008; 87Mr Nisbet, a technical director of Rad-Tel, relevantly deposed to the fact that at approximately 1.00pm on 5 November 2007 he discovered that the problem with the telemetry system was caused by Telstra the week before changing the protocol for telemetry computers sending an SMS but that Telstra had not advised Rad-Tel of the change. 88At 2.00pm the same day, Mr Nisbet dialled into the council's system and successfully installed the updated paging software. 89Ms Janice Taylor, an investigator with the specialist investigations unit of the then Department of Environment and Climate Change ("DECC"), deposed that she conducted interviews with the following council employees: Mr Howard, Mr Wells, Mr Webb, Mr Fogarty and Mr Pearson. The records of interview were attached as exhibits to the affidavit of Ms Taylor. 90During the interview of Mr Webb on 22 August 2008, the following exchange took place (Mr Phillip Herald is Mr Webb's solicitor): Q393 So where here you've written, "No spill occurred", is that based on what you were told by others? A. Yes. If I could wind time back and go have a look at it at 6 o'clock - sorry. Q394 So based on - - Mr Herrald: The answer to the question, I think, is possibly. Q395 It's possible that there was a second spill, a second overflow caused on 5 November? A. Which is possible, but the report to me was that it wasn't. Q396 And who told you there wasn't an over - a spill, an overflow at the site? A. I can't remember in detail exactly who said it. Someone must have told me, otherwise I wouldn't have written it down, ... 91On the same day Ms Taylor conducted an interview with Mr Fogarty during which the following exchange took place: Q350 I guess I ask the question because as I look through the rest of the document - say, for example, 5 November 2007, the same day, later in that day, when we first have the pump fail on the 4th at18.36, if we look at a similar time 18.33, we have pump number 1 off, and then at 18.44 it's clipped on, and 18.46 it's clipped off, 18.56 it's clipped on, and it continues. If we go to 6 November 2007, at 6am or thereabouts, we have multiple entries of pump number 1 coming on and off. Yet, if I look at page 3, I know there's 12 hours there where the pump hasn't been working, whereas if I compare it to another day on this print-out, the pump is on and off, on and off, draining out the sewerage quite regularly. So my question is: is it possible then that by the pump being disable for 12 hours, is it a possibility that perhaps there was a second spill as a result of it reaching capacity and overflowing? A. No, there wasn't a second spill. Q351 There wasn't a second spill? A. There wasn't a second spill. All the advice I've been given was that there wasn't a second spill. The advice was that the pumps did fail, the flow was contained within the sewerage network. You have to understand that besides having a level here, and when I drew you that previous diagram - - 92Ms Walters, a Regional Operations Officer of DECC, relevantly deposed that she inspected the site on 8 November 2007, during which time she took samples from the Queanbeyan River and took photographs of the Morisset St station and the site of the overflow. These photographs along with the photographs taken by Mr Pritzler were annexed to her affidavit. Also annexed were the pump records that confirmed that pump no 1 failed at 18.36.18 AEST on 4 November 2007 and was not reset until 5.48.03 AEST on 5 November 2007. Evidence of the Council 93The council relied on the evidence contained in three affidavits: (a) the affidavit of Ms Natasha Abbott sworn 11 October 2011; (b) the affidavit of Mr Philip Hansen sworn 10 October 2011; and (c) the affidavit of Mr Doug Daniel sworn 30 September 2008. 94Mr Hansen, the council's Group Manager, deposed to the fact that the council had taken steps to improve staff support since the commission of the offence. He recognised that greater knowledge of the telemetry system by key staff and better provision of support for on-call supervisors when an issue arose out of hours may have prevented the discharge the subject of the charge. 95Mr Hansen stated that the council had since created a new position of Technical Officer - Water and Sewer ("the technical officer"), who was required to have significant experience in the operational and technical aspects of managing sewerage infrastructure and a good working knowledge of telemetry systems. 96In addition, on-call supervisors were retrained in relation to how to respond to alarms generated by the telemetry system. Further, on-call supervisors were provided with a list of senior staff upon whom they could call for guidance and assistance at any time, including overnight and on weekends. 97Mr Hansen further stated that the council had taken steps to improve the monitoring and fail safe systems of the sewerage treatment system. Since the date of the offence, in addition to the significant improvement in the physical and operational capacity that the replacement Morisset St station has provided, the council had endeavoured to ensure that staff employed in the water and sewer section had greater technical expertise and were better informed of their responsibilities in the event of an incident occurring. 98The sewage treatment system continued to be monitored by the telemetry system, however, this had been significantly revised and updated. Mr Hansen noted that the telemetry system is now monitored by the technical officer. 99In addition, the council's pump station maintenance team are based at the Morisset St station and are responsible for all pumping stations on the sewerage reticulation network. Mr Hansen deposed that, by being located on-site, the team is now able to deal immediately with any issues regarding the performance of the pump station. Moreover, the team is able to be called in on weekends and after business hours. 100The SMS paging module has also been upgraded so that four officers of the council are notified if an alarm goes off. A protocol built into the SMS paging module requires that an alarm SMS message must be acknowledged by at least one of the four recipients. If the SMS paging module does not receive the required acknowledgement, a voice-dialler module is programmed to call each of the designated mobile phones until a response is received. 101Mr Hansen acknowledged that commission of the offence was due to the failure of the SMS paging module in the then Rad-Tel telemetry system. He stated that, in recognition of this failure, the new telemetry system was programmed to send a test SMS to each nominated mobile telephone at 9.00am each day. If the test SMS is not received, then those persons are trained to investigate the cause of the failure. Further, the telemetry system has an inbuilt polling system that tests the SMS paging module every hour and activates the voice-dialler module if there is a failure. 102Mr Hansen stated that, in addition to the Pump Failure and High Water Alarms, two further alarms have been installed. The first is a High Flow Alarm with a trigger located on a trunk sewer line leading to the Morisset St station, and the second is a Run Time Alarm that is activated if the pumps run for longer than the designated period. 103Mr Hansen also noted the fact that the council had since developed a Master Implementation Plan for a significant technological and capacity upgrade of the sewage treatment plant. In 2010, the council engaged Hunter Water Australia to undertake an upgrade options assessment, to be considered by the council. The planned upgrade was estimated to cost approximately $50 million. 104The affidavit of Ms Abbott deposed to the management and use of the Queanbeyan River and to additional environmental projects undertaken by the council. Exhibited to Ms Abbott's affidavit was the Queanbeyan River Corridor Plan of Management, the Queanbeyan River Corridor Draft Plan of Management and Platypus Awareness and Conservation Strategy, and the Australian Platypus Conservancy Report to the council. 105In 1996, the council commissioned a baseline environmental study of the Queanbeyan River Corridor, and in 1997, resolved to prepare a Plan of Management for the Queanbeyan River Corridor ("the Plan of Management"). This Plan of Management was adopted by the council in mid-1999. 106The relevant goals of the Plan of Management included improving the water quality emanating from development and human activities to ensure compliance with guidelines for the protection of aquatic ecosystems and recreational waters, to achieve sustainable environmental flows and to maintain and improve the ecology and health of the river; and maintaining, protecting and enhancing the natural environmental values of the Queanbeyan River and improving the value and integrity of bushland and riparian zones. Other goals related to visual amenity and landscape; social and cultural heritage; recreation; education; and management. The Plan of Management set out the proposed actions to achieve these goals and their approximate costings. 107The Plan of Management was to be implemented over a twenty year period ending in 2018, with the intention of fostering long-term strategies to address the many issues affecting the riverine catchment area rather than short-term "bandaid solutions". 108Ms Abbott deposed that the Plan of Management was undergoing a review and a second draft of the revised plan would shortly be released for public exhibition and community consultation. The Queanbeyan River Corridor Draft Plan of Management ("the Draft Plan of Management") provides a vision for the river corridor to be achieved by 2030, supported by actions to be implemented over the next decade. The high priority actions recommended in the Draft Plan of Management are as follows: (a) increase riparian habitat and amenity of the river and its tributaries through pollution reduction, erosion control, stormwater treatment, rubbish removal, weed removal, regeneration and revegetation; (b) improve public access along the corridor by a network of sealed paths and unsealed tracks suitable for walkers and cyclists, allowing for circuits of variable length and condition; (c) strict planning and development controls to ensure future development does not adversely affect the river corridor; (d) improved coordination of rehabilitation activities within the corridor by government agencies and the community; and (e) increased community education and involvement. 109Activities listed in the Draft Plan of Management that have been recently undertaken to help rehabilitate the ecological value of the corridor include revegetation and weed control, aquatic plant control and restocking the river with native fish. 110In conjunction with the preparation of the Draft Plan of Management, Ms Abbott stated that the council had commissioned a Platypus Awareness and Conservation Strategy ("the PACS"). The first draft of the PACS had been received by the council from the Australian Platypus Conservancy. The three major elements of the PACS included: first, making provision for platypus in works protocols and management of public land; second, making provision for platypus in planning procedures and developing the role of platypus as a biodiversity "flagship" in community education; and third, investigating ecotourism opportunities. 111Ms Abbott noted in relation to the downstream use of the Queanbeyan River, that the only recreational use by members of the public was occasional fishing from the banks of the river adjacent to the Morisset St bridge. However, this was not a regular occurrence. 112Further, Ms Abbott stated that members of the public did not swim or use this part of the river for recreational activities because it was difficult to access due to reeds and overgrown vegetation, was shallow and was dangerous to swim in due to the presence of willows. 113A walking track is located on the western side of the river from the Weir Pool located in the Queanbeyan central business district and extending to the border of the Australian Capital Territory and New South Wales. Ms Abbott deposed that she was aware of regular walking groups and members of the public who utilised the track. 114Upstream, the revised Plan of Management provides for more direct use of the river by members of the public. This use has increased since the implementation of the council's willow removal and revegetation program. 115Ms Abbott stated that, since the adoption of the Plan of Management, the council has had an ongoing commitment to the improvement of water quality and biodiversity in the Queanbeyan River. Particular projects supported by the council have included: (a) the Olympic Landcare Planting Project, in conjunction with the Queanbeyan Landcare group in 2000, which involved willow and weed removal, river bank stabilisation, installation of a paved walkway along the river, tree planting and native landscaping downstream of the weir; (b) the creation of an "outdoor classroom" in Glebe Park; (c) the Buttles Creek Rehabilitation Program, in conjunction with the Queanbeyan Landcare group in 2003, which involved various river bank stabilisation measures, revegetation and establishment of native grasses downstream of the weir; (d) the Barracks Flat Creek Rehabilitation Program, in conjunction with a group of conservation volunteers, undertaken in 2005 and 2006; (e) the Jumping Creek Erosion Remediation Project in 2010, which involved the remediation of erosion that had occurred on private land; (f) the Queanbeyan River Traditional Owners Restoration Project, which was initiated in 2008 and completed in March 2011. The objectives of the project included the restoration of the Queanbeyan River corridor, the increase in the involvement of Aboriginal people in natural resource management; and the increase of the awareness of the broader community of Aboriginal cultural heritage and resource management; (g) the restocking of the river with native fish, with the assistance of the Queanbeyan Anglers Club; and (h) the regular cleanup of the Queanbeyan River, including the collection of litter and dumped refuse. 116Ms Abbott acknowledged that since the December 2010 floods in Queanbeyan, the council's resources have been devoted to the flood recovery effort and to re-establishing the river corridor downstream of the weir. 117Finally, Ms Abbott noted other environmental projects and groups supported by the council. These included: Queanbeyan Landcare; Fernleigh Park Landcare; the Waterwise project; the City of 10,000 Trees project; a waste reduction program; the Groundswell project; a "3-bin" domestic waste system; a wood smoke reduction program; a reduction of the environmental impact of the council's vehicle fleet; a program to manage the incident of noxious weeds; a household hazardous waste collection program; the South East Resource Recovery Regional Organisation of Councils; a sustainability strategy complete with a sustainability action plan and a climate change action plan; and the Sustaining Our Towns program. 118Mr Daniel, a plumber formerly employed by the council, deposed to his participation in a recorded interview with Ms Janice Taylor and Mr Craig Jones of DECC. During the interview he stated: Q139 Did John say to you, "Look, Doug, can you come past every two hours just to make sure the pump's working? A. No he would have given that information to the plumbing supervisor on the next day, I would have thought. Q141 The next day. A. I am not saying that for certain, but that's -- Q141 No, that's fine. So when you left the site, you weren't given any instructions to come and check or "Look, we've got a problem with the telemetry system can you routinely check it?" -- A. No, no. Q142 - "Can you do a drive-by to make sure that it is not overflowing? A. No. Q143 So you weren't given any instructions to that effect -- A. No. Q144 - to prevent - you know, to prevent a potential -- A. No. Q146 Did he say he was going to? A. No, not to my - I can't recall him saying that. I think - I think what happened was that they were chasing up why the alarm did not come through. Q147 Yes. A. You know, why it didn't come through to his phone. Q148 Yes, there was a few people doing some ringing around, as I understand it, council. A. Yes. Expert Evidence as to Environmental Harm Caused by the Overflow 119The parties also relied on a joint expert report of Mr Geoffrey Coade, Dr Kaye Power and Dr Daniel Martens as to the extent of environmental harm caused by the sewage overflow. The report was admitted subject to the relevance of the material dealing with the environmental harm in the Australian Capital Territory, pending the resolution of an issue concerning the extraterritorial operation of the Act (discussed further below). 120The report concluded that the impact of the release of oxygen-demanding matter into the Queanbeyan River and the Molonglo River Systems as a result of the commission of the offence, whilst incremental, was environmentally insignificant in terms of harm. Similarly, the release of nutrient nitrogen and nutrient phosphorus into the Queanbeyan River was insignificant in terms of environmental harm. However, the report noted that the persistence of the nutrient phosphorus in the receiving waters was likely to have been somewhat longer than that for the nutrient nitrogen. 121In relation to the impact of the offence in the Australian Capital Territory, where the Molonglo River enters Lake Burley Griffin, it was agreed by the experts that there would have been no measurable increase in public health risk. 122The report further noted that, while people may have accessed the Queanbeyan and Molonglo Rivers at various locations, the area considered to present the highest risk from exposure to pathogens was the Molonglo waterskiing area in the ACT. This was due to the potential for ingestion and inhalation during "primary contact recreation". 123However, whilst the spill plume did reach the waterskiing area, the increase over background risk for bacterial pathogens was considered to be negligible due to biological decay of the pathogens over the time required to reach the area. Nevertheless, there would have been an increased risk of exposure to viruses and protozoa. Sentencing Principles 124Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") sets out the purposes of imposing a sentence on an offender. The most relevant purposes are those contained in paragraphs (a), (b), (e), (f) and (g) of s 3A of the CSPA. 125The correct method of sentencing is the instinctive synthesis method, where the judge identifies all the factors relevant to the sentence and weighs their significance in determining an appropriate sentence (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]). 126The 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 council (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). 127Section 21A of the CSPA identifies matters that the Court must take into account when determining an appropriate sentence, including factors in aggravation (s 21A(2)) and factors in mitigation (s 21A(3)). 128Section 241(1) of the Act also sets out matters that the Court is to take into account when imposing a sentence for an offence under the Act. That section relevantly 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. 129The Court must not take facts into account in a manner that is adverse to the council 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 the council, it is enough that these circumstances are proved on the balance of probabilities (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]). The Objective Circumstances of the Overflow 130A primary factor the Court must consider when determining an appropriate sentence is the objective gravity or seriousness of the offence. 131In determining the objective gravity or 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] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]): (a) the nature of the offence; (b) the maximum penalty for the offence; (c) the harm caused to the environment by the overflow of sewage into the Queanbeyan River; (d) the council's state of mind in committing the offence; (e) the council's reasons for committing the offence; (f) the foreseeability of the risk of harm to the environment; (g) the practical measures available to the council to avoid harm to the environment; and (h) the council's control over the causes of harm to the environment. Nature of the Offence 132A fundamental consideration of relevance to environmental offences is the degree to which 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]). 133As Preston J observed in the context of an offence against s 120 of the Act (Environment Protection Authority v Baiada Poultry Pty Limited [2008] NSWLEC 280; (2008) 163 LGERA 71 at [23]): Pollution of waters is a result offence where the proscribed result directly undermines the object of the Protection of the Environment Operations Act 1997. 134The offence of polluting waters by allowing sewage to flow into the Queanbeyan River is wholly incompatible with the objects of the Act set out in s 3 of the Act, particularly, ss 3(a) and (d), which relevantly provide: 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, ... (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, Maximum Penalty 135At the time of the commission of the offence the maximum penalty for a breach of s 120(1) of the Act was $1,000,000 (s 123(a) of the Act). This high maximum penalty mirrors the seriousness with which Parliament views the offence, which in turn reflects the approbation of the community for the commission of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698). Extraterritorial Operation of the Act 136The council submitted that the Act, properly construed, does not operate extraterritorially and therefore the Court is not able to take into account the harm to the environment beyond the New South Wales ("NSW") border to the Australian Capital Territory ("ACT"), including the harm to the Molonglo River, the waterskiing area and Lake Burley Griffin. 137The reasons were threefold. First, the council argued that the reference to "waters" in s 120 is to be read as "waters of New South Wales" by reason of s 12(1)(b) of the Interpretation Act 1987. Under s 12 of the Interpretation Act, in any NSW Act "a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales." 138Second, the council noted that in the interpretation of a provision of an Act a construction that would promote the purpose or object underlying the Act should be preferred to a construction that would not do so (s 33 of the Interpretation Act). Thus the council submitted that when having regard to the objects of the Act, particularly the object in s 3(a), that states it is an object of the Act "to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development" (emphasis added) it was clear that Parliament only intended the Act to operate within NSW. Further, the other objects of the Act, such as s 3(d) "to reduce risks to human health and prevent the degradation of the environment", that were not expressly limited to NSW were, by operation of s 12 of the Interpretation Act, equally circumscribed. Therefore, s 3(d) of the Act must also be read as "to reduce risks to human health and prevent the degradation of the environment" in New South Wales. 139Finally, the council submitted that the legislature considered the need for the extraterritorial operation of the Act and confined it to the circumstances set out in s 109 of the Act (concerning environment protection notices) and s 170 of the Act (concerning pollution coming into the State from acts or omissions outside of the State). Section 170 of the Act, for example, provides as follows: 170 Extra-territoriality A person is guilty of a particular offence against this Act or the regulations in respect of any act or omission done or omitted by the person outside the State: (a) if the act or omission causes any substance to come into the State, and (b) if the substance causes harm or is likely to cause harm to the environment of the State, and (c) if (apart from this section) the act or omission would have constituted that offence if it had been done or omitted within the State. 140There being no equivalent express extraterritorial extension contained in s 120, the council submitted that the offence did not have extraterritorial operation and the environmental harm occurring in the ACT has to be ignored in determining the appropriate sentence. 141The EPA submitted that s 120 is a 'results offence' and that the Court is, in conformity with the objects and beneficial purpose of the legislation as expressed in s 3, able to take into account the consequences of the overflow in NSW that occurred in the ACT. In other words, the consequent pollution of the offence does not stop at the border, and therefore, the Court is not to be artificially constrained from considering the environmental harm that occurred across the border in the ACT. The EPA referred to a series of cases in support of its submission that, because it is a 'results based' offence and because there is a sufficient territorial nexus between the overflow in NSW and the resultant harm in the ACT, the Court is able to take the harm in the ACT into account in determining an appropriate sentence. 142The first of those cases was Ward v R (1980) 142 CLR 308 where the High Court held that where a shot was fired from Victoria and the victim died in NSW, a court in NSW nevertheless had jurisdiction to determine the matter. This was because it was accepted that in relation to the crime of murder, it was where the act took effect upon its victim, in that case NSW, that determined jurisdiction. 143The EPA also relied on the case of Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78, which concerned an appeal in relation to s 16 of the Clean Waters Act 1970, a provision that was in relevantly similar terms to those of s 120 of the Act. In Brownlie, there was a discharge into the Barwon River on the Queensland side of the border that travelled across the river to NSW. The Court held that the fact that the pollutant was discharged in Queensland did not deprive the Court of jurisdiction to hear the matter because the pollutant had reached the waters of NSW. 144In Brownlie, there was discussion of the nature of the offence of polluting waters and the focus of the Clean Waters Act. Significantly, the Court stated that (at 83): ...the offences created by s 16 are "result offences". The occurrence, or likelihood of occurrence, of a certain consequence is a necessary element of the offence and is, indeed, the focal point of the legislature's concern with the conduct in question. The relevant consequence is the polluting of New South Wales waters. So far as the Clean Waters Act is concerned, for a farmer to spray his crops with pesticide is an entirely neutral activity unless it has, or is likely to have, a particular consequence for New South Wales waters. 145However, it must be acknowledged that in Brownlie it was common ground between the parties that the references to "waters" in the Clean Waters Act was to be understood as references to waters in NSW, as a result of the operation of s 12 of the Interpretation Act (at 81). The Court, therefore, proceeded on the basis that the offence only related to the pollution of the NSW side of the river. 146The decision of Lipohar v R [1999] HCA 65; (1999) 200 CLR 485 considered both Ward and Brownlie. In Lipohar, the High Court held that a South Australian court had jurisdiction to hear a conspiracy charge where the conspiracy was formed outside South Australia, but where the scheme was directed at a South Australian company operating in Victoria. Gleeson CJ began by considering the territorial theory of crime and the presumption that "all crime is local", concluding that (at [21]): ...the general common law requirement of single situs has never been absolute, and there is no reason, either in principle or in practical necessity, why it should be. 147Gleeson CJ then looked at whether there was a sufficient connection between the conduct and the territory of South Australia for the offence to be punishable by South Australian law and concluded there was. 148Of course it should be noted that in Lipohar the High Court was dealing with the common law offence of conspiracy, with punishment being prescribed by a South Australian statute. The findings of the Court were based, in part, on the fact that there is one unified common law in Australia that can be enforced where there is a sufficient territorial connection (Lipohar at [26]-[27]). 149In my opinion, the Court has jurisdiction to determine sentence as a result of the fact that the initiating act and some of the resulting pollution occurred within NSW (Lipohar at [122]-[123]). As the EPA noted, the jurisdiction of the Court to hear and determine a criminal offence and the territorial ambit of a law that creates or defines the offence charged are two distinct questions (Thompson v R [1989] HCA 30; (1989) 169 CLR 1 at 19). 150There is no doubt, having regard to the objects of the Act and taking into consideration s 12 of the Interpretation Act, that the Act is concerned generally with the protection of the environment of NSW and that s 120 of the Act is specifically concerned with the protection against pollution of the waters of NSW. But although s 120 is plainly directed to the pollution of NSW waters, and not the waters of the ACT, the physical connection to the pollution that has occurred in the ACT as a result of the commission of the offence in NSW cannot sensibly be ignored and is sufficient to extend the reach of the Court's consideration, not of whether or not an offence was committed, but of the extent of the environmental harm that occurred by reason of the commission of the offence to other jurisdictions in determining the imposition of an appropriate sentence. 151In my view there in nothing in the language of either ss 120 or 241 of the Act or s 21A of the CSPA that would preclude the Court from examining the totality of the harm caused by the commission of the offence, even if part of that harm occurs in another jurisdiction. On the contrary, such a conclusion is in conformity with the objects of the Act, especially the objects expressed in s 3(d) (in which no reference to "New South Wales" is made), and with s 170 of the Act, the purpose of which is plainly to extend, and not limit, the scope of criminal liability under the Act. 152If the council, although operating in NSW, had only discharged sewage (say, due to a broken pipe) into ACT receiving waters, then it is likely that no offence would have been committed pursuant to s 120 of the Act because there had been no pollution of NSW waters. But this is not what occurred in the present instance. Here waters of both NSW and the ACT were polluted as a consequence of the overflow. While the council is not charged with an offence of polluting ACT waters, nevertheless when assessing the total adverse impact of the commission of the offence regard can, and in my opinion should, be had to the effect of the pollution on all of the receiving waters, including those in the ACT. The protection of Australia's unique environment ought not be thwarted by artificially constructed legal boundaries; polluting events do not cease to be polluting merely because they traverse jurisdictional lines. 153I therefore find that the Act does operate extraterritorially insofar as it allows the Court to take into account the totality of the environmental harm caused by the commission of the offence in determining the appropriate sentence to be imposed on the council. The Extent of the Environmental Harm Caused by the Overflow 154The extent of harm caused or likely to be caused by the commission of the offence can increase the objective seriousness of the offence (s 241(1)(a) of the Act). 155The phrase "harm to the environment" is broadly 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. 156Harm to the environment need not only be considered in terms of actual harm, but must also include the potential or risk of harm. In Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 Preston J opined (at [145]-[147] and [149]): 145 Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 146 Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. 147 Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously. ... 149 The fact that the environment harmed by the offender's conduct was already disturbed or modified is not a mitigating factor: State Pollution Control Commission v White Wings Ltd. (unreported, Land & Environment Court, No 50129 of 1991, Bignold J, 1 November 1991) at p 4; Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269 at 273 [14]; Environment Protection Authority v Coggins (2003) 126 LGERA 219 at 224 [18]; Environment Protection Authority v Abigroup Contractors Pty Ltd [2003] NSWLEC 342 (15 December 2003) at [24]; Environment Protection Authority v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006) at [26]. 157The term "likely" in s 241(1)(a) of the Act was defined in Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 (at [44]) as follows: In considering the harm likely to be caused to the environment, it is to be noted that the word "likely" in this context has been held to mean "a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance" (Mathews v Goulburn Wool Processors NSWSC, Smart J, 6 November 1986, unreported); "only a real chance or possibility, and not more probably than not" (State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 LGERA 221 at 224); and "does not mean 'probable'. It means 'a real possibility'" (New South Wales Sugar Milling Co-operative Ltd v State Pollution Control Commission (1991) 73 LGRA 86 at 100, affirmed by the Court of Criminal Appeal on other grounds, (1992) 75 LGRA 320). 158In some cases it is necessary for the Court to consider the state of the environment prior to the commission of the offence in order to assess the extent of the environmental harm caused by the offence and to avoid the offender being made responsible for the environmental harm inflicted by others (Environment Protection Authority v Ecolab Pty Limited [2002] NSWLEC 206; (2002) 123 LGERA 269 at [12]-[15] and Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 at [88]). 159However, as the EPA submitted and as I accept, the fact that the Queanbeyan River had already been modified or disturbed by the first overflow on 4 November 2007 cannot be a factor mitigating the council's conduct (Ecolab at [14], Waste Recycling and Processing Corp at [149] and Walker Corporation (No 4) at [89]). 160The offence involved the discharge of between 915,336 and 1,112,830 litres of sewage into the Queanbeyan and Molongolo River systems. 161Notwithstanding this staggering amount of effluent, it was agreed, based on the joint experts statement, that the impact of the release of oxygen-demanding matter into the Queanbeyan River, whilst incremental, was insignificant in terms of environmental harm. Similarly, the release of nutrient nitrogen and nutrient phosphorus into the Queanbeyan River was insignificant in terms of environmental harm. However, the persistence of the nutrient phosphorus in the water was likely to have been somewhat longer than the nitrogen. 162In relation to the sewage that travelled downstream, across the NSW border and into the Molonglo River in the ACT, which flows into Lake Burley Griffin, this discharge was considered sufficiently serious to justify the closure of Lake Burley Griffin and the Molonglo waterskiing area. Although the pollution incident occurred on 4 November 2007, these areas were not closed until 8 and 9 November 2007. They did not reopen until 13 and 16 November 2007. 163Similarly to the Queanbeyan River system, however, the impact of the release of oxygen-demanding matter, nutrient nitrogen and nutrient phosphorus into the Molonglo River system was insignificant in terms of environmental harm. The Molonglo waterskiing area was considered to present the highest risk from exposure to pathogens, due to the potential for ingestion and inhalation during "primary contact recreation". But while the spill plume reached the waterskiing area, the increase over background risk for bacterial pathogens was considered to be negligible due to biological decay of the pathogens over the period required to reach the waterskiing area. It was noted in the joint expert statement, however, that there would have been an increased risk of exposure to viruses and protozoa. 164While the EPA accepted that the actual harm to the environment was not "significant" and that the offence did not involve a serious risk to public health, it submitted that there was a potential or likely risk to public health by the exposure of public areas to contamination by the overflow of a large quantity of sewage. 165The council, on the other hand, submitted that there was no actual harm to the Queanbeyan River caused by the offence and that there was no potential for harm, given the evidence of Ms Abbott that the area of the Queanbeyan River downstream from the flow to the NSW border is not used for swimming and recreation and is only rarely used for fishing. The council accepted that there was minor actual harm to the Wanniassa St Park caused by the offence, although it submitted that the duration of the harm was limited in time because the discharge in the park was cleaned up by the council on the morning of 5 November 2007. 166In having regard to the expert evidence before the Court, I find that any actual harm caused by the offence was, as the unchallenged expert evidence plainly demonstrated, "insignificant" in terms of its impact on the receiving waters. 167Having said this, I nevertheless find beyond reasonable doubt that there was potential, albeit low, for harm to public health and the environment given the large amount of sewage discharged into the rivers and given that people use the rivers for fishing and recreational activities. State of Mind of the Council 168A strict liability offence, such as the offence in question, that is committed recklessly will be objectively more serious than one not so committed (Rae at [42]). 169The council submitted that it would be an error of law to sentence it for a more serious offence than that with which it has been charged (R v De Simoni (1981) 147 CLR 383 at 389). The submission arose in the following way. The council has pleaded guilty to a "Tier 2" offence against s 120 of the Act. The more serious "Tier 1" offence, with which the council has not been charged, is an offence against s 116 of the Act, which states: 116 Leaks, spillages and other escapes (1) If a person wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner that harms or is likely to harm the environment: (a) the person, and (b) if the person is not the owner of the substance, the owner, are each guilty of an offence. 170The rule against punishment for a higher offence than that which the defendant has been charged was set out in R v De Simoni ("the De Simoni principle") per Gibbs CJ (at 389 and 392): However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. At common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognized as early as the eighteenth century ... It is not only in cases in which the offence has been accompanied by circumstances of aggravation that a trial judge may be required, in sentencing, to take an artificially restricted view of the facts. This will be so also in cases where the jury's verdict is inconsistent with the view of the facts that the judge himself has formed, for the judge cannot act on a view of the facts which conflicts with the jury's verdict. However, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty. 171Accordingly, a sentencing judge cannot take into account a factor which would constitute an element of a more serious offence than the one with which an offender has been charged and of which the offender has been convicted, or to which the offender has pleaded guilty (Cassidy v R [2012] NSWCCA 68 at [1]). 172An offence is more serious than another offence for the purposes of the De Simoni principle if it renders the offender liable to a heavier penalty than the offence for which the offender is being sentenced (Environment Protection Authority v Snowy Hydro Limited [2008] NSWLEC 264; (2008) 162 LGERA 273 at [147] citing R v Booth (NSW Court of Criminal Appeal, 30 September 1997, unreported), Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 at [101] and Chief Executive of the Office of Environment and Heritage v Rinaldo (Nino) Lani [2012] NSWLEC 115 at [35]-[39]). 173The maximum penalty for an offence against s 116 of the Act in the case of a corporation is $5,000,000 for an offence that is committed wilfully, or $2,000,000 for an offence that is committed negligently, whilst the maximum penalty for an offence against s 120 is $1,000,000. The offence in s 116 is, therefore, a more serious offence than the offence to which the council has pleaded guilty and, in my opinion, satisfies the pre-condition for application of the De Simoni principle. 174The De Simoni principle has been applied in statutory contexts, including in the sentencing for environmental offences. In Snowy Hydro, Biscoe J considered the application of the De Simoni principle in the context of s 120 of the Act. His Honour stated that (at [148]-[149]): 148 The principle has been applied in statutory contexts. For example, it was applied to the Criminal Code (WA) in De Simoni and to the Criminal Code (Tas) in Lovegrove v R [1961] Tas SR 206, which was approved in De Simoni at 390-391. In determining whether the De Simoni principle applies in a particular statutory context, the task is to interpret the language used and not to construe the statutory provisions on the assumption that they were intended to reproduce the common law. But if the meaning of the statutory provisions is doubtful, resort may be had to the common law for the purpose of aiding their construction: De Simoni at 391-392. 149 The question then is whether the De Simoni principle applies in the context of the POEO Act. There is appellate authority that it does. In Hardt v Environment Protection Authority (2007) 156 LGERA 337 at 348-349 [53] (NSWCCA) Giles JA (Grove and Harrison JJ agreeing) held in the context of a strict liability offence under the POEO Act, that: Subject to R v De Simoni (1981) 147 CLR 383 considerations, it is relevant to sentence for a strict liability offence or an offence with a mental element less than intention to commit the offence to consider with what intention and appreciation of the offence it was committed. Depending on the intention, the offence may be regarded as more serious. 175His Honour concluded in Snowy Hydro that the De Simoni principle precluded the Court from considering whether the conduct of the defendant was negligent because of the more serious offence under s 116 of the Act. His Honour reasoned that ([150]-[151]): 150 Section 241(1) of the POEO Act (set out at [135] above) does not list negligence among the matters that it mandates must be taken into consideration. However, findings adverse to an offender charged under s 120 in relation to matters listed in s 241(1) could lead the court in some circumstances to conclude that the conduct of an offender charged under s 120 was negligent. There is artificiality in the court then stopping short of describing the conduct as negligent, having regard to s 116 and the De Simoni principle. Nevertheless, it has come to be accepted that the application of the De Simoni principle means that an offender may be sentenced on the fictitious basis that a circumstance of aggravation does not exist when a trial judge would otherwise find that it did exist. In such a case, the price of the principle is an artificially restricted view of the facts. This was recognised in De Simoni at 389, 392. However, at a practical level, if matters listed in s 241(1) were to be decided adversely to an offender, in some circumstances the degree of aggravation may not be much greater if the offender's conduct was also described as negligent. 151 On the basis of the De Simoni principle, I do not propose to entertain the question whether the conduct of Snowy Hydro was negligent. 176Likewise, Craig J in Tea Garden Farms reasoned (at [101]- [102]): 101 The defendant submits that to punish the defendant on the basis that its actions were reckless would contravene the principles enunciated by the High Court in R v De Simoni [1991] HCA 31; (1991) 147 CLR 383. A finding of recklessness would be tantamount to finding an element of aggravation that would warrant conviction for a more serious offence, namely an offence against s 116 of the POEO Act. That approach would offend the dictum of Gibbs CJ (Mason and Murphy JJ agreeing) in De Simoni at 389. 102 I accept the submission of the defendant. While the provisions of s 116 of the POEO Act proscribe, in terms, conduct that "wilfully or negligently causes any substance to leak, spill or otherwise escape", it seems to me that "recklessly" causing a substance to escape is also conduct that is proscribed by the section. I would regard reckless conduct to involve a lower order of fault than "wilful" but to involve an equivalent, if not higher order of fault than "negligent" conduct. As conduct involving fault of the latter kind engages the provisions of s 116, it would make no sense to interpret the section as being inapplicable to conduct that was "reckless"... 177A similar finding was made by Sheahan J in Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129 at [118] (citing Rae at [42]-[43]). 178In this case, I accept that the operation of the De Simoni principle prevents me from considering whether the council acted wilfully or negligently in committing the offence in contravention of s 120 of the Act by reason of the more serious offence of wilfully or negligently causing any substance to leak, spill or otherwise escape contained in s 116 of the Act. 179I further find, applying the reasoning in Tea Garden Farms, that the principle precludes me from considering whether or not the council acted recklessly in the commission of the offence, contrary to the submissions of the EPA, which submitted that the council was reckless to the prospect of there being another sewage overflow. 180The term reckless describes the state of mind of an offender who, while performing or failing to perform an act, is aware of the risk that a particular consequence is likely, in the sense of probable or possible, to result from that act or omission (Pemble v R (1971) 124 CLR 107, La Fontaine v R (1976) 136 CLR 62 and R v Crabbe [1985] HCA 22; (1985) 156 CLR 464). In Blackwell v R [2011] NSWCCA 93; (2011) 208 A Crim R 392, the Court of Criminal Appeal opined that in order to establish the mental element of recklessness "the Crown must establish foresight of the possibility of the relevant consequence" (at [76]). 181But even if I am wrong in my conclusion that I cannot consider whether or not the council acted recklessly in the commission of the offence, I would not, in any event, find this mental element demonstrated to the requisite criminal standard on the available evidence. 182Mr Pearson left the council depot without knowing that the problem with the telemetry system had not been identified. He believed it was still operational. Similarly, the reason for the failure of pump no 1 could not be identified, and the pump was reset when he left the depot. It was not until after the second discharge that Mr Pearson realised that the telemetry system and pump no 1 were still not working. In these circumstances, I could not find that the council was reckless at the time of the commission of the offence. 183It is convenient at this juncture to deal with an allied submission put by the prosecutor concerning the council's state of mind as at the time of the commission of the offence. An offence that is committed without regard for public safety will be objectively more serious than one not so committed (s 21A(2)(i) of the CSPA). The EPA submitted that it was a factor in aggravation in relation to the commission of the offence that the council committed the offence without regard for public safety in that it was committed with the council possessing the knowledge that similar events had occurred before and in circumstances where the council failed to report that an overflow had occurred. 184I have discussed the applicable principles for finding that an offence was committed without regard for public safety in the context of an offence against s 128 of the Act in Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131 (at [73]-[75]): 73 In 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. 74 The 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. 75 Thus if disregard for public safety is an inherent characteristic of the kind of offence for which the offender is being sentenced... it cannot be taken into account because s 21A(2)(i) of the CSPA is not engaged. 185The underlying objective or policy reflected in the enactment of the offence of s 120 of the Act is to prohibit the pollution of waters, which, consistent with the objects of the Act (see s 3(d) of the Act), could result in harm to human health. However, this does not equate to a finding that an inherent characteristic of the offence in s 120 of the Act is acting without regard for public safety. There are many instances where in the polluting of waters, regard is had for public safety, albeit not for the environment. For example, where the substance causing the water pollution is harmless to humans but not to the environment. 186The difficulty that the EPA faces is that it bears the onus of establishing beyond reasonable doubt that the council polluted waters without regard for public safety. I am not persuaded it has discharged that onus on the evidence before the Court. 187The cause of the offence was the dual failures of pump no 1 and the telemetry system so that no SMS was sent when the pump shut down and, as a result, the spill went undetected for a number of hours. Far from disregarding such a risk, the council had contemplated the possibility of a pump failure and had put measures in place to ensure that the pumps were monitored should such a problem arise, even if these measures proved to be inadequate at the time of the commission of the offence. Further, the council had acknowledged the inadequacy of the current Morisset St station given the growing population of Queanbeyan and had began the process of constructing a new pumping station. 188Therefore, while there was human error on the part of Mr Pearson, who failed to monitor the depot or the station after the initial failure of the pump, and there were additional practical measures available that could have been taken to prevent or mitigate the harm, as demonstrated by the subsequent procedures and processes implemented by the council, the evidence does not support a finding that the conduct of the council in breaching s 120 of the Act was in disregard of public safety. Reasons for Committing the Offence 189A factor by which the objective seriousness of the offence may be augmented is the reason for its commission (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366, Bentley at [237] and Rae at [47]). If the offence is found to be committed for financial gain this will increase its objective seriousness (Bentley at [246]-[247] and s 21A(2)(o) of the CSPA). 190The prosector submitted that the offence was "condoned" by the council because of its failure to monitor the operations of the Morisset St station and that this should be taken into account as an aggravating factor in determining an appropriate sentence under s 21A(2)(o). I do not agree. 191I do not accept that a failure to monitor the Morisset St station by the council can amount to a conclusion that the offence was "condoned" by the council and committed for financial gain. There is no cogent evidence to support such a finding. 192The council submitted that, not only was it not carrying out a profit-making activity, but that it was carrying out an essential community service. The activity being carried out was the collection, treatment and disposal of sewage, which is an activity that is manifestly beneficial to the community and the environment. The council submitted that the community and environmental benefits of the activity should be a factor taken into account in mitigation. 193In this regard the council relied on the case of Environment Protection Authority v Orange City Council [1995] NSWLEC 103, where the Court took into account as a factor in mitigation, in the context of an offence against s 16 of the Clean Waters Act 1970, that the provision of a swimming pool, creek and park was a community benefit and that the council was not carrying out a "business enterprise". 194I accept that the offence was not committed for financial gain and that it was committed whilst the council was providing a service that was beneficial to the community and not a "business enterprise". 195However, I note that there is an obligation on councils who provide services to the community to carry out these services in manner so as to avoid harm to the environment. Foreseeability of the Risk of Harm 196The extent to which the council could reasonably have foreseen the harm caused by the commission of the offence is, the EPA submitted, a relevant factor to be taken into account in the determination of sentence (s 241(1)(c) of the Act). 197By contrast, the council submitted that the De Simoni principle precluded the Court from considering the matters in ss 241(1)(b) (the practical measures that could be taken to prevent, control, abate or mitigate that harm), 241(1)(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) and 241(1)(d) (the extent to which the person who committed the offence had control over the causes that gave rise to the offence), because each factor involved elements of the offence under s 116 of the Act. 198In support of its submission the council relied on the decision in R v Crump (NSWCCA, 30 May 1994, unreported) where it was held that facts that of themselves would warrant punishment for a more serious offence should be excluded from consideration. Hunt CJ at CL opined: In my opinion, however, it is now well settled that a sentencing judge may take into account all the conduct of the prisoner, including that which would aggravate the offence, but may not take into account as matters of aggravation facts established in the evidence which would have warranted a conviction for a more serious offence or which would have rendered the prisoner liable to a more serious penalty than that which is prescribed for the offence to which he has pleaded guilty-or of which he has been found guilty. That is clearly stated by Gibbs CJ (at 389, 392). It has sometimes been argued in this Court that this principle applies also to exclude as an aggravating feature any fact established in the evidence if that fact would by itself have rendered the offender guilty of any other offence, whether or not that other offence would have rendered the offender liable to a more serious penalty than that to which he is liable for the offence for which he is being sentenced. That is not so. At first blush, the early eighteenth century principle to which Gibbs CJ referred in of his judgment (at 389) would support such an argument, but the modern authorities which the Chief Justice went on to discuss (at 389-391) make it clear that such a fact should be excluded only where it would have made the offender liable to a more serious penalty. 199It has been held that the De Simoni principle continues to apply notwithstanding the statutory obligation to take into account the aggravating factors contained in s 21A(2) of the CSPA (Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38 at [50], McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 at [39] and Cassidy at [1]). The justification for this course is the obligation not to have regard to any aggravating factor if to do so would be contrary to any rule of law, statutory or otherwise (s 21A(4) of the CSPA and Cassidy at [1]). 200But no equivalent to s 21A(4) of the CSPA is contained in the Act in respect of the matters the Court "is to take into consideration" as clearly proscribed by s 241 of the Act. Thus in, for example, Tea Garden Farms the Court had no hesitation in considering the matters contained in s 241(1)(b), (c) and (d) of the Act notwithstanding the presence of the offence created by s 116 (at [86]-[95]). In my opinion, the same result must follow. 201The council further submitted that because contravention of s 116 of the Act requires the harm to have been foreseeable to a reasonable person in the position of the defendant (citing NSW Sugar Milling Co-operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6 per Hunt CJ at CL at 7) and because s 241(1)(c) of the Act states that the Court is to take into consideration the extent to which the person who committed the offence could reasonably have foreseen the harm, the foreseeability of actual or likely harm is a necessary component of the offence created by s 116 of the Act and cannot be considered by the Court as a factor in aggravation in the determination of an appropriate sentence. 202Moreover, because the breach of duty of care in respect of negligence is characterised by a failure to take reasonable care and that this enquiry in the context of s 116 of the Act would include whether the council had control over the causes of the offence and whether there were practical measures available to prevent the offence, this similarly precluded consideration of these factors by the Court in determining an appropriate sentence. 203But as was stated in Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 at [81], albeit in relation to an offence against s 118 of the National Parks and Wildlife Act 1974, "in the criminal context, negligence means more than a breach of a duty of care". Further, to amount to criminal negligence (at [81]): ... the degree of carelessness must be such as to show such a disregard for the objects of the statute as to amount to a crime against the state (R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8; see also Andrews v DPP [1937] AC 576 per Lord Atkin at 583; applied in Cittadini v The Queen [2009] NSWCCA 302 at [38]-[40]). For there to be negligence, there must have been an indifference to an obvious risk (R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini). 204I do not consider on the existing authorities that the De Simoni principle prevents me from considering those factors set out in s 241(1)(b), (c) or (d) of the Act because these matters could not of themselves necessarily make the council liable for the more serious offence of negligently causing water pollution. It is possible, for example, to find that the council had control over the causes and that there were practicable measures available to the council to prevent, control, abate or mitigate the harm but to stop short of finding that the council was, on the facts, criminally negligent in committing the offence. 205I therefore find that to the extent that these factors do not result in a finding of negligence, that I am able to take into account the matters proscribed in s 241(1)(b), (c) and (d) of the Act (s 241(1)(e) is irrelevant). 206Accordingly, in respect of s 241(1)(c), given that there had already been a recent failure of the pump, given that the reason for the failure had not been identified, given that the council did not know whether the failure with the telemetry system had been fixed and whether a SMS would be sent to the on-call supervisor if there was another pump failure, given that the pump station only had a limited storage capacity for untreated sewage if there was a pump failure and given that the council did not take any steps to monitor the Morisset St station, I find that the council could readily have foreseen the harm caused or likely to be caused to the environment by the commission of the offence (Baiada at [29]). 207Put another way, it was foreseeable that harm would be caused to the environment in circumstances where it may be reasonably be inferred that the council was aware that raw sewage was not designed for release to the environment and that such release was likely to be or had the potential to be harmful to human health, particularly in light of the extent of the volume of the overflow (nearly 1.1ML). Control Over the Causes of Harm and the Practical Measures Available to the Council to Avoid It 208As the authority responsible for the running, monitoring and maintenance of the sewerage system, including the Morisset St station, as well as the employer of the people carrying out the monitoring of the station, it follows that the council had complete control over the causes that gave rise to the offence (s 241(1)(d) of the Act). 209Further, as the EPA submitted, there were practical measures available to the council to prevent, control, abate or mitigate the harm (s 241(1)(b) of the Act), namely, the council could have implemented a procedure that directed on-call supervisors to act if there was a failure of the SMS paging system; Mr Pearson could have been given specific training on what to do if the SMS paging system failed; and someone could have personally monitored the depot or the Morisset St station after the pump failure on 4 November 2007 or ensured someone was available to remotely monitor the operation of the depot on a laptop. The Offence is One of Moderate Objective Gravity 210Having regard to the factors discussed above, particularly the potential harm that could have resulted from commission of the offence in light of the high volume of sewage that escaped, the foreseeability of the environmental harm and the practical measures that were available to the council to avoid the pollution, I find that the offence committed is one of moderate objective gravity. 211I am reinforced in this finding by the fact that the council did not notify the users of the Queanbeyan River, the Department of Health or the EPA of the overflow as outlined in the council's own policy. The Subjective Circumstances of the Council 212In determining an appropriate sentence the Court must take into account the mitigating and aggravating factors personal to the council (s 21A(2) and (3) of the CSPA). 213The subjective circumstances of the council relevantly include: (a) any prior criminal record; (b) any plea of guilty; (c) any contrition and remorse expressed; (d) the council's good character; and (e) any cooperation with, and assistance to, the regulatory authorities provided by the council. Prior Criminality 214The council has one prior conviction for a criminal offence (s 21A(3)(e) of the CSPA). 215The Council was convicted by the Court on 20 November 1996 and fined $10,000 for an offence against s 16(1) of the Clean Waters Act 1970. The offence involved the discharge of approximately 68,000 litres of raw sewage into the Queanbeyan River from the Lochile St sewage pumping station. In that case the station alarm system was, again, not activated. 216The EPA submitted that the prior criminality of the council should be taken into consideration as an aggravating factor because the current offence arose out of a similar factual matrix as the prior conviction and manifested "a continuing attitude of disobedience of the law" (Veen v R (No 2) at 477). 217The council, while accepting that the prior offence could be taken into account by the Court in determining the appropriate sentence, submitted that very little or no weight should be attributed to it because it represented a lone aberration in an otherwise faultless history of operating the sewerage system for over 80 years and because the passage of time had rendered the prior conviction less relevant. Further, the council noted that the prior offence was occasioned by an error on the part of the council's telemetry contractor, which and was rectified. 218It is true that the offence occurred over a decade before the commission of the offence currently before the Court for sentencing, but given the factual similarity to the current offence, it is my view that the Court should give it some weight, although admittedly not much given the passage of time, and should not treat it "neutrally" as proffered by the council. However, I do not find that this single prior conviction, which occured over a decade ago, manifests a continuing attitude of disobedience with environmental laws so as to warrant a more severe penalty being imposed. Plea of Guilty 219The council withdrew its plea of not guilty, entered on 5 June 2009, and entered a plea of guilty on 20 September 2011, which was one week before a contested hearing on liability was scheduled to commence. The council is still entitled to a discount for the utilitarian value of the plea of guilty, although the discount must necessarily be limited given the circumstances of the late entry of the plea (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the CSPA). 220The EPA submitted that, given the substantial delay in the entering of the guilty plea, its utilitarian value had been eroded so that the council was entitled to no discount or only a limited discount in the amount of 10%. Further, the EPA submitted that the offence was such that the interest and protection of the public suggested that no discount, or only the most minimal, was warranted (R v Thomson; R v Houlton at [157]-[158]). 221Generally, the reason for the delay in the plea is irrelevant because, if a plea is not forthcoming, the utilitarian value is wholly diminished (Rae at [63] citing R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1). In this case the utilitarian value of the guilty plea has been significantly eroded. However, I do not consider this case, as was submitted by the EPA, as falling into the category of cases where the public interest requires no discount to be imposed. The entering of the plea still avoided the time and expense of having to hear and determine a contested charge. The circumstances of the guilty plea, therefore, should warrant a discount of 15%. Contrition and Remorse 222The contrition or remorse of an offender must be taken into account as a mitigating factor in determining the appropriate sentence for an offence (s 21A(3)(i) of the CSPA). 223In Waste Recycling and Processing Corporation Preston J stated that contrition and remorse is more readily demonstrated by an offender "taking actions" rather than offering "smooth apologies" through legal representatives (at [203]). His Honour identified four forms of actions that would demonstrate genuine contrition and remorse (at [204])-[214]). These are: (a) first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence (at [204]); (b) second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities (at [210]); (c) third, taking action to address the cause of the offence (at [212]); and (d) fourth, the appearance of council officers in court and evidence of the council's regret with a plan of action to avoid repetition of the offence (at [214]). 224Waste Recycling and Processing Corporation was relied upon and applied by Craig J recently in Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 and Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80. 225The council submitted that it expressed contrition and remorse through the affidavit of Mr Hansen and that it has taken steps to ensure that a similar offence does not occur in the future. 226The EPA submitted that the council, by blaming it for the occurrence of the offence because of the requirement to move the retention structure from the Riverside Caravan Park, demonstrated a lack of a sense of responsibility and contrition. Further, the EPA submitted that the fact that the council moved to have the proceedings stayed on the basis that it should have been issued a licence that would have provided it with a defence under s 122 (see Queanbeyan No 1) of the Act demonstrated a serious lack of concern for the health of the waterways within its jurisdiction. 227The EPA additionally contended that a "self-serving" statement by an employee of the council provided late into the sentence hearing did not constitute evidence of the genuine contrition and remorse required for that mitigating factor to be satisfied. It was submitted that the contrition and remorse of the council had to be judged in the circumstances of the council's conduct, with particular regard being had to the fact that the council failed to report the overflow the subject of the charge. 228I do not entirely agree. The council was entitled to defend itself and the fact that it initially pleaded not guilty and sought to have the proceedings stayed does not derogate from what must be accepted as a genuine expression of contrition and remorse in the affidavit of Mr Hansen (Mr Hansen's evidence was not challenged). Further, the council's post offence conduct has demonstrated that it has taken responsibility for its actions by taking steps to improve staff support; to improve the monitoring system; and to upgrade the sewage treatment plant. The fact that the council was initially not aware that there was an overflow does not deprive it of the benefit of these remedial actions. 229Having said this, there is some force in the EPA's contentions with respect to the council's conduct during the proceedings that does serve to blunt the efficacy of its apology, but only to a minimal degree. 230I accept that both the evidence of Mr Hansen and the actions of the council since the commission of the offence do demonstrate remorse within the context of s 21A(3)(i) of the CSPA and that at least three of the four forms of action demonstrating genuine contrition and remorse identified by Preston J in Waste Recycling and Processing Corporation have been demonstrated. Although the council voluntarily reported the commission of the offence, in doing so it also reported that there was no concomitant environmental harm insofar as the report initially stated that there was no overflow. Good Character 231With the exception of the earlier conviction, the council has demonstrated to the Court evidence of good character that should be taken into account as a mitigating factor (s 21A(3)(f) of the CSPA). 232As the evidence of Mr Hansen outlined above demonstrates, in addition to introducing and following procedural measures designed to address the deficiencies in the council's processes that led to the commission of the offence, the council has now completed the replacement of the Morisset St station. The cost of the replacement of the Morisset St station is estimated to be $6.8 million. 233I have also taken into account the extensive evidence of Ms Abbott detailing the extensive range of projects that the council both directly and indirectly carries out (or funds) for the improvement of the environment, including the Queanbeyan River. Assistance to the Authorities 234The assistance by the council to regulatory authorities must be taken into account as a factor mitigating the penalty to be imposed (ss 21A(3)(m) and 23 of the CSPA). In looking at the significance and usefulness of the offender's assistance to the authority concerned, it is necessary to take into consideration any evaluation by the authority of the assistance rendered (s 23(2)(b) of the CSPA). 235The council submitted that it cooperated in the investigation of the offence by ensuring that staff members were available for interviews, without requiring notices under the Act. The council also submitted that it complied with a number of statutory notices requiring the provision of documents and information and participated in the compilation of an agreed statement of facts. 236By contrast, the EPA argued that the council failed to report the offence, provided no assistance to the authorities, and instead interfered with the investigation of the offence. This lack of assistance was submitted as being particularly egregious in circumstances where the council is a public authority with a duty to assist in the prevention of pollution and where the council should have conducted itself in a manner in keeping with a model defendant. 237As the evidence contained in the statement of agreed facts establishes, the council, through its employees Mr Laws and Mr Pearson, became aware that there was a second pump failure on 5 November 2007. 238On 5 November 2007, Mr Webb called Mr Sargent of DECC to report "a sewer overflow from a manhole in Waniassa St this morning." Mr Webb stated that he did not know how much sewage was discharged and whether it had reached the Queanbeyan River. Mr Sargent requested that the overflow be investigated and that a report of the offence be furnished to him. 239On 7 November 2007, Mr Webb emailed Mr Sargent the report of the overflow. The report only detailed the spill on 4 November 2007 not the subject of the charge. 240On 10 December 2007, the council provided another report to the EPA entitled "Report of Sewer Overflow to the Queanbeyan River on 4 November 2007", which stated in relation to the offence: A similar sequence of failures occured at 18:36:10 but owing to there being no undue flow volumes no overflow occurred. 241On 28 October 2008, the council was issued, and subsequently complied, with a notice to provide information and/or records in relation to any overflow from the Morisset St station on 4 and 5 November 2007. 242On 22 August 2008, Mr Fogarty, the nominated representative of the council, and Mr Webb participated in interviews where they both stated that the advice that was given, or the information that was reported, to them was that there was a second pump failure but that this did not result in an overflow. 243There is no evidence before the Court that the council was being deliberately misleading or trying to interfere with the investigation of the EPA in reporting that the advice it had received indicated that there had not been a second overflow, that is to say, the overflow the subject of the charge. 244But by not carrying out a thorough investigation into what had occurred on the evening of 4 November until the morning of 5 November 2007, the reliability of any information provided by the council and its employees was severely circumscribed and necessitated the EPA carrying out its own investigation into what occurred on 4 and 5 November 2007. 245Further, the fact that all the interviews with the council's staff were, with the exception of the interview of Mr Daniels, directed interviews, cannot be ignored. Moreover, in his interview Mr Fogarty denied the commission of the offence. Mr Fogarty was the council's nominated representative for the purpose of answering questions under s 203 of the Act. 246Having regard to the evidence before the Court I find that the council did provide some assistance, but only to a limited degree. It results in a very modest reduction in penalty pursuant to s 23 of the CSPA. In this regard, I have also noted that, in preparation for the sentencing hearing, the council provided assistance by the preparation of a statement of agreed facts. Costs 247The Court is empowered to order an offender to pay the prosecutor's costs as specified or as may be determined pursuant to ss 257B and 257G of the Criminal Procedure Act 1986. 248The payment of a prosecutor's costs is an aspect of punishment (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and Rae at [68]) and may be considered in the determination of the appropriate penalty, including as a factor that acts in the reduction of any penalty to be imposed. 249The council has agreed to pay the EPA's costs as agreed in the amounts of $343,000 by way of legal costs and $1,189 by way of investigative costs and expenses. On any view these costs are, although not unreasonable, substantial. I therefore take the quantum of these costs into account. Conclusion on Subjective Considerations 250The subjective considerations of the council operate to mitigate to a limited degree the penalty that would otherwise be imposed by the Court. The Appropriate Sentence to be Imposed on the Council 251The imposition of a sentence serves a number of purposes. As s 3A of the CSPA sets out, these purposes include retribution and denunciation, as well as deterrence, both specific and general. Deterrence 252The sentence must be sufficient to specifically deter the council from repeating the conduct that resulted in the commission of the offence in the future in the hope that only nominal penalties will be applied. There is also a need for the sentence to serve as a general deterrent to prevent others committing similar offences against the Act (Snowy Hydro at [206] and Axer at 367). 253The EPA submitted that an element of specific deterrence should be incorporated into the penalty. This was because the council was, despite its recent efforts to replace the pump station, a recidivist offender. The EPA submitted that the Court should have regard to, not only the previous offence in 1996, but also the previous overflows referred to above that did not result in prosecution but were the subject of the first and second prevention notices. 254By contrast, the council submitted that there is not a likelihood of it re-offending because the Morisset St station has now been replaced and the telemetry system has been upgraded so that the circumstances in which this offence occurred cannot be repeated. 255Although I acknowledge that the council has undergone a review and upgrade of the pump station and put into place procedures and monitoring processes to ensure that similar offences are not committed again in the future, I find that there is a need to include specific deterrence as a component of the penalty, especially given the prior criminal and non-criminal history of the council in polluting waters. 256The parties agreed, and I find, that the sentence must serve as a general deterrent to those operating sewerage systems to ensure that they carry out all activities with the aim of avoiding water pollution. The fine needs to be large enough to make it worthwhile that these precautions, irrespective of their cost, be undertaken by such authorities (Snowy Hydro at [207]). Denunciation and Retribution 257The imposition of an appropriate sentence serves the purpose of ensuring that retribution and denunciation are properly addressed. The sentence of this Court is a public denunciation of the conduct of council and must ensure that the council is held accountable for its actions and is adequately punished (Rae at [8]-[9], and ss 3A(a) and (e) of the CSPA). Accordingly, I also take these elements of sentencing into account. Consistency in Sentencing 258A 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 Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 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 that merely forms part of that range (Gittany at [182]). 259Of 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, given the wide divergence of facts and circumstances leading to the imposition of specific penalties (Axer at 365, Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]). 260The EPA submitted that the pattern of sentencing against which the present case falls to be considered was examined by Preston J in the case of Rae (at [77], [79]-[83], [86] and [88]-[89]). However, I do not see how it assists the Court in determining a general pattern of sentencing for the offence against s 120 of the Act because the cases considered by his Honour therein concerned offences against s 12 of the Native Vegetation Act 2003. 261The council referred the Court to a number of cases that concerned offences against s 120 of the Act, including: Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160, Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255, Environment Protection Authority v Ramsay Food Processing Pty Ltd [2010] NSWLEC 23, Environment Protection Authority v Albury City Council [2009] NSWLEC 169, Baiada and Snowy Hydro. 262In Sibelco waters were polluted with sediment-laden water discharged from the defendant's property as a result of a dam wall failing. There was actual and potential harm caused to the waters in the low to moderate range. The overall objective gravity of the offence was considered to be in the low to moderate range. There were no aggravating factors. However, there were a number of mitigating factors applicable to the defendant, including that the defendant pleaded guilty at an early opportunity; the defendant expressed contrition and remorse; the defendant provided assistance to the authorities; and the defendant agreed to pay the prosecutor's costs. The Court imposed a penalty of $78,000 to be paid to Hunter Central Rivers Catchment Management Authority for general environmental purposes and made a publication order. 263In Chillana a cracked pipe led to 98,000 litres of untreated abattoir effluent spilling into a nearby creek and river. The pipe was fractured as a result of contact with an underground rock. There was significant actual environmental harm to the creek that had the potential to last several months. The defendant had one prior conviction but was found unlikely to reoffend; the defendant expressed remorse; the defendant entered an early guilty plea; and the defendant was found to have cooperated fully with the authorities. The Court ordered the defendant to pay the Land and Property Management Authority the sum of $60,000, to be applied to a restoration and enhancement project, and to pay the prosecutors' legal costs as agreed or assessed and the prosecutor's investigation costs of $16,070.58. 264In Ramsay untreated effluent escaped from the defendant's abattoir as the result of a split pipe and a valve being opened. The defendant in that case had a pollution record; the environmental harm was serious; there was evidence of mortality among aquatic life and potential harm to human health; and the utilitarian value of the guilty plea was reduced. Justice Biscoe fined the defendant $50,000 for the pollution of waters offences and ordered the defendant to the pay the prosecutor's legal and investigation costs. However, the reason for the fine being only $50,000, given the extent of harm, was that his Honour found that the offence was caused by an unauthorised third party tampering with the effluent pumps. 265In Albury City Council a pump failure caused sewage effluent to overflow from a manhole discharging via a gutter into a stormwater drain leading to a stormwater gully and then into the Murray River. There was no actual harm caused by the commission of the offence, but there was a potential for harm. There were practical measures available to the council to prevent, control, mitigate or abate the harm, but the offence was at the lower end of reasonable foreseeability. Overall, the offence was considered to be of low objective gravity. Further, there were no aggravating factors present and there were a number of mitigating factors, including: the defendant did not have any prior convictions; the defendant demonstrated good character; the defendant pleaded guilty at an early stage; the defendant expressed contrition and remorse; and the defendant cooperated and provided assistance to the authorities. The Court imposed a fine of $45,500 and ordered the defendant to pay the prosecutor's legal and investigation costs in the amount of $18,044. 266In Baiada the offence involved approximately 1ML of effluent from Baiada's poultry rendering plant escaping from a defective weld in an underground pipeline. The effluent descended into an unnamed watercourse in a paddock owned by Baiada. The effluent flowed down the watercourse for approximately 1.1kms. The actual environmental harm was found to be very small and the evidence did not establish likely harm to the environment. The offence was reasonably foreseeable and there were practical measures available to Baiada to prevent the harm. Subjectively, the defendant had four prior convictions; the defendant had expressed contrition and remorse; the defendant had entered an early plea of guilty; and the defendant had provided assistance to the authorities. The Court fined the defendant $160,000 reduced to $120,000 for the early guilty plea. 267In Snowy Hydro, in a series of related events occurring over four days, somewhere between four and eleven tonnes of sediment were discharged into the Snowy River as a result of the works that a contractor for Snowy Hydro was carrying out associated with the Jindabyne Dam. This sediment comprised soil, earth, clay or similar inorganic matter. It was accepted that environmental harm was in the lower range. The offence was described as being of moderate objective seriousness. The subjective circumstances considered included that the defendant had no prior convictions; that it had pleaded guilty at an early stage; that it had expressed remorse; that it had devoted considerable resources to mitigating the harm occasioned by the offence; and that it had fully co-operated with the authorities. Snowy Hydro was fined the sum of $100,000 and was also ordered to pay the prosecutor's legal costs in the sum of $84,289 as well as its investigation costs in the sum of $1,897.50. The contractor to Snowy Hydro was convicted of an identical offence arising from the same circumstances as those that gave rise to the prosecution of Snowy Hydro (Environment Protection Authority v Fulton Hogan Pty Ltd [2008] NSWLEC 268; (2008) 163 LGERA 345). A fine of $100,000 after allowing discount for an early guilty plea was also imposed upon that defendant. 268In addition to the above cases dealing with offences under s 120 of the Act, the council also referred the Court to the case of Environment Protection Authority v State of New South Wales [2010] NSWLEC 67; (2010) 174 LGERA 19. That case concerned an offence against s 64(1) of the Act. In that case, the defendant was the holder of an environment protection licence, a condition of which was breached in that it failed to operate equipment in a proper and efficient manner. The offence was the result of an employee mistakenly believing matter was safe to be released, which resulted in 151KL of partially treated effluent being discharged into Perisher Creek. The discharge consisted of a mixture of sewage sludge and its supernatant. There was no environmental harm caused by the offence and the likelihood of environmental harm was low. The foreseeability of the offence was low because of the difficulty of an employer foreseeing that an experienced operator would deviate from standard practice. There were also a number of mitigating factors present. The Court ordered the defendant to pay the Southern Rivers Catchment Management Authority the amount of $80,000 for the purpose of riparian rehabilitation and exotic tree removal and to pay the prosecutor's costs of $65,000. By reason of the circumstances in which the offence was committed and the offence with which the defendant was charged, this case is of limited assistance in the determination of the appropriate penalty in the present case. 269Several other water pollution cases, which were not referred to by the parties, are worth examining for the purpose of ensuring parity. 270In Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211, an incident occurred at the Newstan Colliery at Fassifern, south of Newcastle, resulting in the pollution of a nearby creek, which flowed into Lake Macquarie. The Court accepted that the environmental harm was in the relatively low range but that there were a number of measures that could, and should, have been taken to prevent the harm that occurred. The offence was not committed deliberately and the defendant gained no commercial advantage by its commission, rather the pollution occurred because the defendant failed to have in place a system to prevent or control the discharge of pollutants from its pipeline system. The offence was considered to be one of moderate objective gravity. The defendant entered a plea of guilty at the earliest opportunity and the defendant's cooperation with authorities in relation to the management and clean up of pollutants was forthright and fulsome. The defendant was ordered to pay Lake Macquarie City Council the sum of $105,000 to fund the Council's Ecosystem Enhancement Operations Program in the Stony Creek catchment and publicise the offence in The Sydney Morning Herald and The Newcastle Herald newspapers. The defendant was also ordered to pay the prosecutor's costs, including investigation expenses, in the sum of $38,500. 271In Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114; (2010) 174 LGERA 314, the defendant company pleaded guilty to one charge under s 120(1) of the Act. Between 1,000 and 3,000 tonnes of toxic slime material spilled from the defendant's gold and antimony plant, travelled a distance of over 300m along a road, 200m over a grassed area and along the dry bed of a creek. The slime did not reach the waters of the creek and the potential harm to the receiving waters was considered to be very low. Following the incident, the defendant cleaned up the slime, cooperated in every respect with the prosecutor's investigation and implemented several internal changes to ensure that similar incidents would not occur in the future. The defendant entered a guilty plea at the first available opportunity, had no prior convictions and formally expressed regret for the occurrence of the incident. A fine of $50,000 was imposed following a discount in the penalty by 33%. The defendant was also ordered to pay the prosecutor's legal and investigation costs in the sum of $24,000. 272In Environment Protection Authority v George Weston Foods Limited [2010] NSWLEC 120, the defendant company pleaded guilty to a charge of polluting waters, which resulted from an incident involving the discharge of a blend of animal tallow and vegetable oil from the defendant's stock feed manufacturing plant into the Peel River, which runs through several public parks and into the City of Tamworth. The cause of the incident was found by the defendant to be undetected corrosion in the welded joint of a steam pipe, resulting in the creation of a small hole through which oil and tallow became entrained with steam passing through that pipe. The principal effect of the pollution was a reduction in the aesthetic and recreational value of the Peel River, which extended over 2.25kms and was apparent for a period of nine days. Samples indicated these sections of the River contained an oil and grease content of between 100 and 800 times higher than background levels, resulting in water quality being reduced below Australian and New Zealand standards. Although Craig J accepted that the incident was an accident, his Honour held that it was nonetheless reasonably foreseeable. There were practical measures available that the defendant could and should have taken to prevent the offence and to clean up the pollution. The offence was classified as being towards, but not at, the lower range of objective gravity. The defendant pleaded guilty at the first available opportunity, cooperated in the investigation of the incident and demonstrated contrition and remorse. The defendant was ordered to pay $67,000 to Tamworth Regional Council to fund the Peel River Riparian Project, to pay the prosecutor's legal and investigation costs in the sum of $30,000, and to publicise the offence. 273In Environment Protection Authority v Ramsay Food Processing Pty Ltd (No 2) [2010] NSWLEC 175 the defendant company was found guilty of an offence under s 120 of the Act (Environment Protection Authority v Ramsay Food Processing Pty Ltd [2010] NSWLEC 150) for allowing a mixture of animal tallow and waste water to flow from its abattoir into Musk Valley Creek. Over a period of four to five days, a length of 100m of the creek was moderately affected by the spill, which settled on the creek surface as scum, contributing to deoxygenation of the waters to the point that the water became "black" and anaerobic in places. The actual environmental harm was considered to be minor because it was restricted to a relatively small section and there was limited potential for it to cause long-term impact to the creek. The defendant company, with numerous recorded incidents and/or court appearances, had a poor record in environmental matters. The defendant expressed some remorse and offered assistance to authorities. The objective seriousness of the offence was considered to be at the lower end of the scale. There were several practical measures that the defendant could and should have taken to prevent the incident, including supervision of the premises during the night, taking precautions to ensure the drainage system was not blocked, and undertaking regular clearing of the premises. Bearing these factors in mind, Sheahan J was disposed to impose of fine of $100,000, absent any discount. Instead, his Honour ordered the defendant company to carry out an environmental audit of the premises, estimated to cost $84,450.30, and implement steps to prevent the continuance or recurrence of the offence. The defendant was also ordered to publicise the offence and to pay the prosecutor's legal and investigation costs. 274In Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 the defendant pleaded guilty to a charge pursuant to s 120 of the Act. It admitted that during 29 and 30 November 2009 a pollutant containing approximately 6,000 litres of a dangerous liquid resin was spilt, that flowed into a stormwater drain and onto a wetland. Samples taken on 30 November and 2 December 2009 found levels of formaldehyde, phenol and pH to be significantly above acceptable limits, which caused actual harm to the wetland environment over an area of approximately 1.7ha. The pollution also had the potential effects of being toxic to livestock and affecting the health and distribution of wetland dependent fauna. It was, however, found that the effects would not be long lasting, and thereafter, the environmental harm was classified as being in the low to moderate range. Several practical measures existed that the company should have taken to control or mitigate the harm. However, following the incident, Big River cooperated with the prosecutor in the investigation of the pollution spill, entered a plea of guilty to the charge on a first return date and took several steps to prevent future spills, including making plans for the rebuilding of the entire plant. The Court imposed a fine of $67,000, following a discount of 33%, and ordered the defendant to pay the prosecutor's legal and investigation costs in the sum of $59,644.80. 275The defendant in Environment Protection Authority v Austar Coal Mine Pty Ltd [2011] NSWLEC 252 pleaded guilty to the offence of polluting waters for causing an unknown amount of water containing two pollutants, a detergent and effluent from a bathhouse, to escape into Bellbird Creek and travel 2km downstream to Doyle St dam. The detergent in the effluent caused white foam and elevated levels or methylene blue active substances, nutrients and faecal coliforms along sections of the creek. Potential harm was also caused to aquatic biota. Austar took actions to contain the pollution and flush the creek to mitigate the harm, and overall the harm was considered to be low. The offence was not committed negligently, however, there were further practical measures that could have been taken to prevent the occurrence of the incident, which was foreseeable. Austar had been issued with two penalty notices relating to this and a similar incident, however these were not considered to demonstrate a continuing attitude of disobedience to the law. An early plea of guilty entitled the defendant to a 25% discount in the penalty. Contrition, remorse and assistance to authorities were also demonstrated. The Court considered that a fine of $75,000 would be an appropriate penalty, but ordered that the amount be paid to the Hunter-Central Rivers Catchment Management Authority for the Mount View Corridor Threatened Species Habitat Rehabilitation Project. The defendant was also ordered to publicise the offence and to pay the prosecutor's legal and investigative costs in the sum of $42,264.13. 276Moolarben Coal Operations (No 1) concerned the discharge of sediment-laden water into Bora Creek near Ulan in New South Wales, which flowed into the Goulburn River, resulting from four discrete events occurring between 8 and 23 June 2009. The defendant pleaded guilty to a charge under s 120 of the Act. Although there was no evidence of actual harm to the environment apart from the visual effect of the discharge and elevated levels of suspended solids, turbidity and nutrients, the increased nutrient levels had the potential to cause harm to aquatic ecosystems and biota, including via the development of algal blooms. The environmental harm, particularly in the long term, was considered to be at the lower end of the range. As a condition of project approval for the coal mine, the defendant prepared a Water Management Plan, a component of which was an Erosion and Sediment Control Plan. The defendant had chosen not to carry out the majority of the erosion and sediment control measures indicated by the Plan, which constituted evidence of practical measures that the defendant should have taken to prevent the incident. The defendant acknowledged that the primary cause of pollution was the undertaking of earthworks without first completing sediment and erosion control structures. Although the discharge was not deliberate, no explanation was provided as to why these measures had not been taken. The incident was foreseeable and mitigation was within the defendant's control. The offence was considered to be of medium or mid range objective seriousness. The defendant entered a plea of guilty at the earliest opportunity and expressed contrition, however no actions were taken to alleviate the consequences of the discharges. The defendant cooperated with the investigation and agreed to pay the prosecutor's legal and investigation costs in the sum of $61,632. A fine of $105,000 was imposed, following a discount of 30%. 277Moolarben Coal Operations was charged with a further offence of polluting waters arising from a similar incident on 27 December 2009 (Moolarben Coal Operations Pty Ltd (No 2)). By this time, several interim erosion and sediment control measures had been completed since the June discharges, however these were not intended to replace the measures that were identified in the Erosion and Sediment Control Plan. An environmental audit was undertaken on 4 December 2009 wherein a number of "key erosion and sediment control deficiencies" were identified in the rail loop area. A number of recommended measures were commenced, but had not been completed, by 27 December. On that day, a large rainfall event occurred, resulting in the discharge of approximately 18.7ML of sediment-laden water into Bora Creek and the Goulburn River. Approximately 800m of the creek and river confluence was visibly polluted by sediment and increased levels of turbidity and total suspended solids above Australian and New Zealand standards had the potential to affect aquatic ecosystems and biota. The harm was classified as low to moderate. Again, there were practical measures available that should have been taken to prevent or mitigate the harm. The foreseeability of harm arising from the failure to carry out the works specified in the Erosion and Sediment Control Plan and as a result of the audit was apparent from the terms of the Plan and the audit recommendations. Although the discharge was not deliberate, the defendant took a number of risks by implementing temporary erosion and sediment control measures that were not reasonably justified. The offence was classified as one of medium or moderate objective gravity. The defendant's actions in voluntarily reporting the commission of the offence, taking action to address the cause of the offence and in expressing regret demonstrated genuine contrition and remorse. The defendant was fined $112,500, discounted by 25% to allow for the early plea of guilty, ordered to pay the prosecutor's legal and investigation costs in the sum of $63,314 and ordered to publicise the offence. 278Finally, the case of Environment Protection Authority v Pipeline Drillers Group Pty Ltd [2012] NSWLEC 18 involved two charges under s 120 of the Act for the discharge of a bentonite slurry into the Partridge Creek wetland near Port Macquarie. Each discharge occurred while the defendant was undertaking horizontal drilling beneath the wetland. An initial incident involving the escape of bentonite slurry into the rock substrate did not form the subject of any charges. A second similar incident occurred six days later. As a result, drilling ceased temporarily and sandbags were put in place to contain the pollutant. Upon discovery of a third incident, on 17 November 2009, all drilling ceased and a clean up of the site commenced. The incident occasioned actual environmental harm over approximately 120ha, including the smothering of some plants, and indirect harm to related species. There was some evidence of potential harm to the threatened Wallum Froglet species. However, having regard to the apparent absence of long-term impact, the overall environmental harm was classified as low. There were further steps that could have been taken to prevent the harm that occurred, however, once the escape of bentonite slurry was discovered, the defendant acted promptly to control, abate and mitigate the harm. The pollution incidents were accidental and the defendant gained no financial advantage from the commission of the offences, however it was considered that the punishment should reflect an element of general deterrence. A plea of guilty was entered at an early stage and the defendant cooperated at all stages of the proceedings. Taking into account the totality principle and a 25% discount for the early guilty plea, the defendant was fined $18,000 for the first offence and $12,000 for the second offence. The defendant was also ordered to publicise the offence and to pay the prosecutor's legal and investigation costs in the sum of $44,000. 279I find the facts of the offence with which the council has been charged to be less serious than those present in Chillana, Ramsay and Moolarben Coal (Nos 1 and 2), but more serious than those underlying the imposition of the penalty in Albury City Council, Centennial Newstan, Big River, George Weston Foods and Pipeline Drillers. The cases that serve as the most relevant comparators are, in my opinion, those of Sibelco, Snowy Hydro, Baiada and Austar. Conclusion on Penalty 280Synthesising the objective circumstances of the commission of the offence, the subjective circumstances of the council and the general pattern of sentencing for offences such as the one committed by the council, I consider that the imposition of a monetary penalty of $100,000, discounted by 20% to $80,000 for subjective mitigating factors, including the late plea of guilty, would otherwise be appropriate. In determining this penalty I have taken into account the considerable quantum of costs that the council has agreed to pay. Type of Penalty to be Imposed 281Both the prosecutor and the council submitted that this was a case in which it was appropriate for the Court to make an order under s 250(1)(e) of the Act. This provision enables the Court to order an offender: ...to pay a specified amount to ...a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes. 282An order for such a payment may be made in lieu of the imposition of a fine (Austar at [48], Tea Garden Farms at [148]-[152] and Centennial Newstan at [92]). 283The parties have agreed that the Numeralla East Landscape Project is suitable for such an order for the following reasons: * The project has commenced and is currently funded by the NSW Government through the Murrumbidgee Catchment Management Authority; * It is anticipated that the project will take three (3) year and involves a series of soil and water conservation works in the Numeralla East sub-catchment; * The aim of the project is to work with landholders, Landcare, Local Government and NSW Crown Lands to implement works that will improve fish habitat and water quality in the catchment; and * Additional funding would allow the implementation of further erosion control works with a complimentary and management program to proceed as negotiated with landholders via a property vegetation plan. 284Having regard to s 250(1)(c) of the Act, I am satisfied that it is appropriate to direct the monetary penalty that would otherwise be imposed by the Court to this project. 285The EPA has sought, and the council has agreed, that in addition a publication order should be made pursuant to s 250(1)(a) of the Act. The order requires the council to publish a notice in the newspapers identified by the parties to record the commission of the offence and the council's contribution to the project identified above. I accept that a publication order in the manner described is appropriate in the present case. Orders 286The Court therefore makes the following orders: (1) the council is convicted of the offence as charged against s 120(1) of the Protection of the Environment Operations Act 1997; (2) pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, within 28 days of these orders the council must pay the Murrumbidgee Catchment Management Authority the sum of $80,000 to be used for the Numeralla East Landscape Project; (3) all future public references by the council to its contribution to the Murrumbidgee Catchment Management Authority Numeralla East Landscape Project the subject of order 2 above must be accompanied by the following passage: "Queanbeyan City Council's contribution to the funding of the Murrumbidgee Catchment Management Authority Numeralla East Landscape Project is part of a penalty imposed upon it by the Land and Environment Court of New South Wales after it was convicted of an offence under s 120 of the Protection of the Environment Operations Act 1997 for polluting the Queanbeyan River and waters downstream thereof". (4) the council, pursuant to s 248(1) of the Protection of the Environment Operations Act 1997 is to pay the prosecutor's investigative costs and expenses in the sum of $1,189, within 28 days of this order; (5) the council is to pay the prosecutor's legal costs in the sum of $343,000, within 28 days of this order; (6) the council, at its expense and pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, within 28 days of this order, is to place a notice in the first 12 pages of the early general news section of The Sydney Morning Herald, The Canberra Times and The Queanbeyan Age at a minimum size of 10cm by 20cm in a form attached at Annexure A to these orders; and (7) the exhibits are to be returned. ********** Annexure "A" Queanbeyan City Council On 18 September 2012, the Land and Environment Court of NSW found Queanbeyan City Council ("the council") guilty of one charge of water pollution against s 120(1) of the Protection of the Environment Operations Act 1997. The Environment Protection Authority prosecuted the council for polluting the waters of the Queanbeyan River, including downstream waters, on or about 4 November to 5 November 2007. The pollution incident followed the discharge of sewage from an overflow outlet at a substation situated in Waniassa Street, Queanbeyan, which was operated and controlled by the council. Ultimately the council pleaded guilty to the offence. The Court found that insignificant environmental harm was caused by the commission of the offence. In lieu of the imposition of a fine, the council was ordered to pay the Murrumbidgee Catchment Authority Numeralla East Landscape Project the sum of $80,000 to be used for the Numeralla East Landscape Project. The council was also ordered to pay the legal costs of the Environment Protection Authority in the sum of $343,000 and investigation costs of $1,189. Further the council was ordered at its expense, to publish this notice. Amendments 25 October 2013 - Admin error Amended paragraphs: Index Added before Judgment 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: 25 October 2013