Land and Environment Court New South Wales Medium Neutral Citation: Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 Hearing dates: 15 April 2013 Decision date: 22 April 2013 Jurisdiction: Class 5 Before: Pepper J Decision: See orders at [112]. Catchwords: ENVIRONMENTAL OFFENCE: harm to Aboriginal object caused by excavation - plea of guilty - determination of appropriate sentence - objective culpability of corporate defendant - state of mind at time of commission of the offence - extent of harm to the environment - subjective factors in mitigation - whether appropriate to record no conviction - publication order made. Legislation Cited: Crimes Act 1900, s 556A Crimes (Sentencing Procedure) Act 1999, ss 3A, 10, 21A, 22, 23 Criminal Procedure Act 1986, ss 257B, 257G Environmental Planning and Assessment Act 1979, s 111 Interpretation Act 1987, s 21 National Parks and Wildlife Act 1974, ss 2A, 86(2), 194 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 Blue Mountains City Council v Carlon [2008] NSWLEC 296 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 Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312 Department of Environment and Climate Change v Sommerville; Department of Environment and Climate Change v Ianna [2009] NSWLEC 194 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Environment Protection Authority v Barnes [2006] NSWCCA 246 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 Queanbeyan City Council (No 3) [2012] NSWLEC 220 Environment Protection Authority v Ross [2009] NSWLEC 36; (2009) 165 LGERA 42 Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273 Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38 Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 Garrett v Williams [2007] NSWLEC 96; (2007) 151 LGERA 92 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22 Lavorato v R [2012] NSWCCA 61 Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Plath v O'Neill [2007] NSWLEC 533; (2007) 174 A Crim R 336 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Paris [2001] NSWCCA 83 R v Slattery (1996) 90 A Crim R 519 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: Chief Executive, Office of Environment and Heritage (Prosecutor) Ausgrid (Defendant) Representation: Mr R Verzosa (Solicitor) (Prosecutor) Mr I Lloyd QC with Mr S Nash (Defendant) Office of Environment and Heritage (Prosecutor) Holding Redlich (Defendant) File Number(s): 51112 of 2012 Judgment Ausgrid Destroys an Aboriginal Rock Engraving 1The defendant, Ausgrid, has pleaded guilty to the commission of an offence against s 86(2) of the National Parks and Wildlife Act 1974 ("the NPWA") in that it harmed an Aboriginal object. 2In summary, on 2 December 2010 a contractor carried out excavation works which damaged an Aboriginal rock engraving located at Orlando Road, Cromer, New South Wales. The contractor was unaware that there was an Aboriginal rock engraving in the area because an environmental impact assessment ("EIA") prepared for, and then reviewed by, Ausgrid mistakenly stated that the works were not expected to impact on any Aboriginal objects. The EIA was for a new electrical substation. The mistake arose because although Ausgrid was aware that the rock engraving was located on the southern side of Orlando Road, Cromer, it believed that the excavation works for the establishment of the substation would be carried out on the northern side of Orlando Road. 3The plea of guilty gives rise to the necessity to determine an appropriate sentence to be imposed on Ausgrid for the commission of this offence. For the reasons set out below, I have determined that the appropriate sentence to be imposed is to record a conviction against Ausgrid and to order that it be fined the sum of $4690. It is also appropriate to make a publication order in the form annexed to this judgment at 'A'. Legislative Framework 4Section 86(2) of the NPWA provides: 86 Harming or desecrating Aboriginal objects and Aboriginal places ... (2) A person must not harm an Aboriginal object. Maximum penalty: (a) in the case of an individual-500 penalty units or (in circumstances of aggravation) 1,000 penalty units, or (b) in the case of a corporation-2,000 penalty units. 5The term "harm" is defined in s 5(1) of the NPWA as follows: harm an object or place includes any act or omission that: (a) destroys, defaces or damages the object or place, or (b) in relation to an object-moves the object from the land on which it had been situated, or (c) is specified by the regulations, or (d) causes or permits the object or place to be harmed in a manner referred to in paragraph (a), (b) or (c), but does not include any act or omission that: (e) desecrates the object or place, or (f) is trivial or negligible, or (g) is excluded from this definition by the regulations. 6There is no doubt that the damage occasioned to the rock engraving constituted "harm" for the purpose of the Act. 7The term "Aboriginal object" is defined to mean (s 5(1) of the NPWA): Aboriginal object means any deposit, object or material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains. 8There is, moreover, no doubt that the Aboriginal rock engraving damaged by Ausgrid was an "Aboriginal object" for the purpose of the NPWA. Ausgrid Mistakenly Believed that Excavation Works for the Establishment of a Substation Would be Carried Out on the Northern Side of Orlando Road 9The facts relevant to the commission of the offence and, in large measure to the imposition of the penalty, are not in dispute. They are derived from a detailed Statement of Agreed Facts, to which was annexed a bundle of documents; the affidavit and oral evidence of Mr Trevor Armstrong, the Chief Operating Officer of Ausgrid; the affidavit evidence of Mr Ricky Lyons, the Chairperson of the Metropolitan Local Aboriginal Land Council ("MLALC"); and the affidavit evidence of Mr Lesley Turner, the Acting Chief Executive Officer of the NSW Aboriginal Land Council ("NSWALC"). 10The Court also undertook a physical inspection of the damaged rock engraving with the prosecutor and defendant both present, together with members of the MLALC and NSWALC. 11Ausgrid, formerly known as EnergyAustralia, is a state owned corporation established as an energy distributor under the Energy Services Corporations Act 1995. 12In establishing the electrical substation, Ausgrid was under an obligation under Pt 5 of the Environmental Planning and Assessment Act 1979 ("the EPAA") to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment as a result of the activity. This included the impact of the activity, in this case the establishment of the substation, on any Aboriginal objects. 13The policy and procedure for carrying out environmental assessments by Ausgrid was contained in a number of its policy documents. These included its Aboriginal Heritage Guidelines (the EG251 Aboriginal Heritage Guidelines). These guidelines contained information on what processes should be undertaken in order to determine whether any works could have an impact on Aboriginal objects. The steps included: (a) accessing data from the Office of Environment and Heritage ("OEH") register of Aboriginal objects called the Aboriginal Heritage Information Management System ("AHIMS"); (b) having the site surveyed by an Aboriginal archaeologist; and (c) consulting with the local Aboriginal Land Council and stakeholder groups for the area in which the activity was to be undertaken. 14At all relevant times Ausgrid had a licence to access data in relation to the location of Aboriginal objects registered on AHIMS. 15In 1979, rock engravings located at Orlando Road, Cromer were registered on AHIMS under AHIMS Site Card #45-6-1851 ("the site card"). The site card indicated that there was an Aboriginal rock engraving of a footprint (or "footstep") on the southern side of Orlando Road, Cromer. The engraving is located on a sandstone outcrop near the intersection of Orlando Road and Inman Road, Cromer approximately one metre from the kerb of Orlando Road. The footprint was approximately 10 x 5 inches in size. The site card indicated that the rock on which the engraving of the footprint was located, had been "jackhammered away to facilitate the building of kerb and guttering in Orlando Road." There were no annotated photographs to the site card and the importance of the site to Aboriginals was not described on it. 16Pursuant to a request in 2008 by 123 Signs Pty Ltd ("123 Signs") to modify its connection to the Ausgrid network to provide more electrical power, Sheldermine Consulting Engineers ("Sheldermine") submitted a design package for the construction of a new substation to Ausgrid for verification. The design package included a number of documents, in particular, design drawings and an EIA. The design proposed that excavation/trenching works be undertaken at Orlando Road in order to install the necessary underground cables required for the new substation. 17A number of Ausgrid employees were involved in reviewing the design package for the proposed works. In short, the EIA was forwarded to an Ausgrid environmental planner for verification. This planner allocated the EIA to a junior work experience Ausgrid environmental officer for review. The officer did the following in the process of reviewing the EIA: (a) conducted a further search revealing that there were Aboriginal objects in the area; (b) considered whether the works would impact on any of these Aboriginal objects. She obtained a copy of the site card, conducted a site visit to Orlando Road and conducted discussions with Sheldermine to determine the nature of the proposed works; and (c) as a consequence of these discussions, having formed the mistaken belief that the excavation works would be occurring on the northern side of Orlando Road, she therefore determined that the proposed works would not affect any of the Aboriginal objects located at Orlando Road. 18The works were actually proposed to take place on the southern side of Orlando Road. 19As a result of her mistaken belief, the officer amended the EIA so that it included the following statements: Works to occur in the vicinity of a known Aboriginal Heritage Area (rock engravings), however due to current site use, these are not likely to be found within the site area. The project is not expected to impact on any known Aboriginal Heritage as the site is on previously developed commercial land. The site is in the vicinity of a known Aboriginal Heritage Area... It is unlikely that an Aboriginal site or artefact will be found due to the highly disturbed/developed nature of the site, however, if this does happen, L1ASP to stop work on site immediately, restrict access and contact ESU. 20The officer then verified the EIA under Pt 5 of the EPAA and forwarded it to 123 Signs. 21123 Signs engaged Macaya Electrical Services Pty Ltd ("Macaya") to carry out the excavation works necessary for the establishment of the substation in accordance with the design package certified by Ausgrid. Macaya engaged two independent contractors to assist in carrying out the excavation works. 22On 2 December 2010, the two independent contractors carried out the excavation works. The works involved using a rock breaker attachment on an excavator to break rocks located along the intended trenchline. An excavator was used to break up the sandstone that was present near a tree located on the southern side of Orlando Road. It was during the use of this excavator that the damage to the footstep rock engraving occurred. At no point were Macaya or the two independent contractors aware that there was an Aboriginal object in the area. Their knowledge was based on a reading of the EIA. 23A council officer noticed that the works were being carried out, and upon investigation, observed that the excavation works had damaged a rock engraving. The officer then ordered the workers to stop and to report the matter to the OEH. 24The Aboriginal rock engraving was not immediately visible. It was only after clearing the area of dirt and leaves that the engraving, and the damage to it caused by the excavation works, could be observed. 25In addition to immediately ceasing all excavation works, to ensure that no further damage to the rock engraving occurred, Macaya removed all tools and equipment from the site near the rock engraving and erected a temporary fence around the area. 26On 3 December 2010, OEH officers inspected the excavated area on Orlando Road and the damage to the footprint rock engraving. Photographs were taken of their inspection. These photographs revealed extensive damage to the engraving. Approximately 40 to 60% of the sandstone rock, and therefore the engraving, had been destroyed. The destruction was not remediable. 27On 17 December 2010, as a result of a meeting between Ausgrid and OEH officers, a decision was made to re-route the excavation works (and the cabling) to avoid any further impact on the Aboriginal object. 28It was therefore not in dispute that the cause of the commission of the offence was the mistaken belief by the Ausgrid officer that the excavation works would be carried out on the northern side, and not the southern side, of Orlando Road, Cromer, and accordingly, that the works would not impact the Aboriginal rock engraving. Cross-examination of Mr Armstrong during the hearing revealed that the Ausgrid officer delegated to review the EIA was a very junior employee with minimal experience in assessing environmental impact assessments. At the relevant time she was on work experience with Ausgrid. Mr Armstrong agreed that a more experienced environmental officer may have avoided the error committed by that officer. The Significance of the Rock Engraving 29The traditional Aboriginal people in the Cromer area are the Garigal. The tangible record of Indigenous occupation in the Cromer area generally takes the form of rock shelters, shelters with art, grinding grooves and engravings. The footprint motif of the rock engraving damaged by the commission of this offence is consistent with engraving motifs found within the Sydney region. In the northern beaches area there are 113 rock engraving sites registered on AHIMS. 30Aboriginal rock engravings have significance for the following reasons: (a) they have spiritual significance; (b) they may be considered to be a form of information exchange; (c) they provide evidence of pre-contact Indigenous occupation and land usage in a particular area; and (d) they have a cultural significance to the local and wider Indigenous community as a record of their cultural heritage prior to non-Indigenous contact. Post Incident Measures Implemented by Ausgrid 31According to the written evidence of Mr Armstrong, Ausgrid had since the incident implemented a suite of environmental procedures to assist employees in understanding their environmental responsibilities including Aboriginal site awareness training. 32As a result of the commission of the offence at Cromer, improvements to Ausgrid's Environmental Services Unit's planning and environmental processes have been made as follows: (a) the EG251 Aboriginal Heritage Guidelines have been reviewed and updated to mandate the need for a site visit and a requirement to provide site cards and the results of any investigations to environmental assessors prior to determining any potential environmental impacts likely to be caused by an activity carried out by Ausgrid; (b) a mandatory Aboriginal heritage due diligence assessment has been introduced into the EIA process; (c) a mandatory EIA verifier checklist has been introduced, detailing all verifier checks to be completed, including an Aboriginal heritage check, before verifying an EIA; (d) an environmental reporting tool has been developed to improve the identification of environmental issues, including Aboriginal heritage issues, during the EIA process; (e) Ausgrid's EIA worksheet has been amended to automatically refer any EIA to the Environmental Services Unit at Ausgrid for projects involving a trigger area such as Aboriginal heritage; and (f) where an EIA has identified a potential Aboriginal heritage issue at a site, an Environmental Services Senior Supervisor will now be appointed to oversee the due diligence assessment. 33These and other measures were detailed in a table attached to the affidavit of Mr Armstrong. Ausgrid's Support of the Indigenous Community 34Mr Armstrong described the financial and other support that Ausgrid provides to various Indigenous community organisations and Ausgrid's internal educational and employment initiatives. This support includes: (a) implementing Aboriginal and Torres Strait Islander employment initiatives, including apprenticeships. Ausgrid currently employs 28 Aboriginal apprentices; (b) developing and implementing a Reconciliation Action Plan, which aims to support Indigenous Australians to obtain long term sustainable employment in the electrical supply industry; (c) holding annual NAIDOC events as part of Ausgrid's Diversity and Inclusion Strategy; (d) supporting Indigenous summer school programs at the University of Newcastle, the University of Sydney and the University of New South Wales; and (e) establishing an Indigenous Steering Committee in 2006 to provide input to the strategic direction of its Indigenous people. This Committee meets quarterly. 35In addition, Ausgrid recently identified several previously unrecorded Aboriginal heritage sites that it discovered as part of Aboriginal due diligence assessments undertaken during the preparation of EIAs. These sites include shelters, middens, stone artefact scatters and artwork. Ausgrid has provided this information and the co-ordinates of the discovered sites to the OEH. 36Both in his written evidence and expressed orally in Court, Mr Armstrong "unreservedly apologised" on behalf of Ausgrid for the damage it caused to the rock engraving. Sentencing Considerations 37The 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 offender (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). 38The purposes of imposing a sentence on an offender are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA"). Section 21A of the CSPA also 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)). In addition, s 194 of the NPWA states that the following matters must be considered in imposing a penalty for an offence under that Act: 194 Sentencing-matters to be considered in imposing penalty (1) In imposing a penalty for an offence under 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 by the commission of the offence, (b) the significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence, (c) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence, (e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (f) in relation to an offence concerning an Aboriginal object or place or an Aboriginal area-the views of Aboriginal persons who have an association with the object, place or area concerned, (g) whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee, (h) whether the offence was committed for commercial gain. (2) The court may take into consideration other matters that it considers relevant. 39The correct method of sentencing is the instinctive synthesis method, where the Court identifies all the relevant factors and weighs their significance in determining an appropriate sentence (Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]). 40In doing so, the Court must not take facts into account in a manner that is adverse to Ausgrid 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 Ausgrid, it is enough that these are proved on the balance of probabilities (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]). Objective Gravity of the Offence 41In determining an appropriate sentence, the primary factor the Court must have regard to is the objective gravity or seriousness of the offence. In determining the objective seriousness of the offence, the circumstances to which the Court may have regard include (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110]; Garrett v Williams [2007] NSLEC 96; (2007) 151 LGERA 92 at [64]-[92] and Plath v O'Neill [2007] NSWLEC 533; (2007) 174 A Crim R 336 at [71]-[79]): (a)the nature of the offence; (b)the maximum penalty for the offence; (c)the extent of harm caused to the environment by the commission of the offence; (d)Ausgird's state of mind in committing the offence; (e)Ausgrid's reasons for committing the offence; (f)the foreseeability of the risk of harm to the environment; (g)the practical measures available to Ausgrid to avoid harm to the environment; and (h)Ausgrid's control over the causes of harm to the environment. Nature of the Offence 42A fundamental consideration of relevance to the objective seriousness of this offence is the degree to which Augrid's conduct offends against the legislative objects of the NPWA (O'Neill at [74]). These objects are relevantly set out at s 2A(1) of the Act: 2A Objects of Act (1) The objects of this Act are as follows: (a) the conservation of nature, including, but not limited to, the conservation of: (i) habitat, ecosystems and ecosystem processes, and (ii) biological diversity at the community, species and genetic levels, and (iii) landforms of significance, including geological features and processes, and (iv) landscapes and natural features of significance including wilderness and wild rivers, (b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to: (i) places, objects and features of significance to Aboriginal people, and (ii) places of social value to the people of New South Wales, and (iii) places of historic, architectural or scientific significance, (c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation, (d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation. 43The conservation of objects of social, cultural and historic value to Indigenous people is an express object of the NPWA. The damage caused to the rock engraving is plainly incompatible with the objects set out in s 2A(1)(b) and (c) of the Act. It undermined the integrity of the system of preservation of cultural heritage under Pt 6 of the NPWA, which plays a critical role in promoting those objectives (Garrett at [67]-[69] and O'Neill at [76]). More importantly, although unintentionally, it had the tendency to perpetuate the "national legacy of unutterable shame" (Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 104 per Deane and Gaudron JJ) caused by the dispossession of Aboriginal persons from their lands as a consequence of colonisation. Maximum Penalty 44The maximum penalty for this offence is $220,000 in the case of a corporation (s 86(2)(b) of the NPWA). The maximum magnitude of the penalty reflects the seriousness with which Parliament views the offence of harming Aboriginal objects (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698). 45In O'Neill Biscoe J referred to the then relatively low maximum penalty for the former offence of damaging or disturbing an Aboriginal object. He noted that (at [73]): 73 The maximum penalties for many other environmental offences are very much higher than for the subject offences. For example, under s 119 of the Protection of the Environment Operations Act 1997 (NSW), penalties for individuals range up to $1 million and seven years imprisonment and for planning and development offences under s 126 of the Environmental Planning and Assessment Act 1979 (NSW), the maximum penalty for strict liability offences is $1,100,000 for any offender. By reference to those measures, the subject offences have not been placed by the legislature at the top end of the spectrum. 46On 2 July 2010, amendments were made to the NPWA resulting in a ten-fold increase in the maximum penalties for such offences. Although inadequately low compared with the maximum penalties enacted for other environmental and planning offences, the increase must nevertheless be taken by the Court as reflecting the legislature's (and therefore, the community's) view that the protection and preservation of Indigenous cultural heritage is to be taken seriously and the Court is "required to give effect to the obvious intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner" (R v Slattery (1996) 90 A Crim R 519 at 524 per Hunt CJ at CL; Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273 at [155] and Environment Protection Authority v Ross [2009] NSWLEC 36; (2009) 165 LGERA 42 at [72]). Of course, this does not mean that the imposition of any sentence for a breach of s 86(2) of the NPWA should proportionately increase to a commensurate level (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [37]). Extent of the Harm Caused by the Damage to, and the Significance of, the Aboriginal Engraving 47The environmental harm caused by the commission of the offence is a central consideration in determining the objective gravity of the offence (s 194(1)(a) of the NPWA). Likewise the significance of the Aboriginal object harmed (s 194(1)(b) of the NPWA). 48The concept of harm in the context of environmental offences is broad (Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145] and [147]): 145 Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 (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. ... 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. 49In the present case, the harm caused to the environment encompassed not only the immediate and direct impact of the excavation on the rock engraving itself and to the local Indigenous community, but more broadly the commission of the offence also caused harm to the national Indigenous and non-Indigenous community. This is demonstrated by the evidence outlined below. 50During its investigation, the OEH obtained an expert report from an archaeologist, Ms Fran Scully. In Ms Scully's opinion the harm caused to the rock engraving was significant because not only had the irreparable damage to the engraving diminished the significance of it, the removal of the sandstone outcrop had also diminished the immediate context of the rock engraving thereby compromising its setting and meaning. Moreover, because the footprint was no longer recognisable, the significance of the rock engraving as an indicator of past Indigenous occupation of the area had likewise been diminished. A tangible link to the past had therefore been substantially eroded, if not obliterated. 51The significance of the rock engraving, and thus the extent of the harm caused by the damage to it, was also deposed to in the affidavits of Mr Ricky Lyons and Mr Lesley Turner. Relevantly, Mr Lyons described the cultural importance of the Aboriginal object in question as follows: The significance of the rock engraving located at Orlando Road, Cromer 7. The rock engraving at Cromer is one of only 1632 Aboriginal objects registered on AHIMS (Aboriginal Heritage Information Management System) in NSW. Given that there are tens of thousands of known engraving, rock art and painting sites in NSW, this puts this site in the top 1 per cent of sites in terms of its current level of protection in NSW law. 8. As an Aboriginal person who resides in the Metropolitan area, I view all remaining art sites as significant, and as a link for all Aboriginal persons residing in our are to directly experience a link to our landscapes. 9. 'Mundowie' or footprints are important markers of cultural routes, and this one points down the hill directly to the Narrabeen lake catchment area, a resource rich area. Finds around the carving indicate that there may have been regular movement of people from and to the Lake, bring shellfish and other resources with them to a camp on higher, drier land. This carving demonstrates Aboriginal people's relationship to the landscape, not just isolated objects as being significant for our people. 10. As an Aboriginal person, I note that the practical track marking was probably also linked to spiritual creation stories, but I am not personally aware of the particular story for this print. 52As Mr Lyons stated, "to be able to see such a carving, adjacent to industrial and urban development is an important reminder to all Australians that our country has a deep and rich cultural history." Mr Lyons considered the damage caused to the engraving to be "deeply offensive to me as an Aboriginal person." 53Mr Turner reiterated this sentiment. She emphasised that: ...Aboriginal peoples' definition of culture is not limited to particular places or physical evidence of Aboriginal existence on the land. It includes both the tangible and intangible things that tell a story about the land, environment, people, family, history, law, community and spirituality. 54Mr Turner noted that while the local Aboriginal community was the most appropriate group to comment on Aboriginal heritage, it was the view of the NSWALC that the rock engraving the subject of this prosecution was particularly significant "due to the extremely high rates of both historical and contemporary destruction of Aboriginal heritage both illegal and legally authorised." She went on to observe that: The rock engraving of a footprint at Cromer is a rare and representative example of Aboriginal heritage sites in the area. The site provides clear and intact evidence of Aboriginal occupation in the area prior to European colonisation. It's [sic] significance is strengthened as in that it is a rare example of an intact surviving occupation site in a highly urbanised setting. 55Mr Turner noted that the continued destruction of Aboriginal culture and heritage sites was an issue, the significance of which went beyond the local and national level to the international level, as embodied and enshrined in the United Nations Declaration on the Rights of Indigenous Peoples. Articles 11 and 31 of that Declaration specifically recognise the international significance of Indigenous culture and heritage. Significantly, Mr Turner went on to state that: The proper protection of Aboriginal culture and heritage is of deep importance to the NSW Aboriginal Land Council and Aboriginal communities in NSW. In this case, the harm that has occurred due to the engraving being sliced in half means that the engraving can never be replaced. The destruction of Aboriginal sites, such as has occurred in this instance impacts on the ability of Aboriginal peoples to connect with a living culture of the past. These sites tell important stories for Aboriginal communities and must be protected to provide Aboriginal people with opportunities to strengthen and maintain culture now and in the future. 56On 25 July 2011, the MLALC wrote to the OEH by way of response to a request for information on the history and significance of the engraving and expressed the following view: All Aboriginal rock engravings are look [sic] upon as significant to Aboriginal people no matter what the size, shape or other. Aboriginal sites are the oldest historical documentation of life and culture on the continent. Metro LALC views Aboriginal engravings as valuable as any non Aboriginal sculpture, painting, memorial or other historical object. We view the management and protection of the sites of a priority [sic] for all Australian people and visitors. 57The prosecutor submitted that the harm caused by damage to the rock engraving was sufficiently substantial that it amounted to an aggravating factor in the determination of an appropriate sentence pursuant to s 21A(2)(g) of the CSPA. The prosecutor bears the burden of proving beyond reasonable doubt that the damage or harm reaches the threshold of being "substantial" (Garrett at [81]). 58I do not agree. First, while there was considerable evidence of the harm that the damage and destruction of Aboriginal objects causes generally to the Indigenous community, there was limited evidence of the specific significance of the rock engraving in question. The paucity is such that no conclusion may be confidently drawn as to the extent of the importance and the cultural, social and historical value of this object, and thus, the extent of the harm caused by the damage to it. 59Second, the physical state of the object and its surrounding environment at the time that the excavation occurred cannot be ignored. It was, as the prosecutor conceded, weathered and covered in dirt and leaves. The sandstone block upon which the footprint was engraved had been damaged by earlier kerb construction. The roots of an adjacent tree were threatening to encroach upon it. It was not protected by fencing or signposting in any way and other Aboriginal engravings located nearby had been vandalised. Although the fact that the environment harmed by the offender's conduct was already disturbed or modified is not a mitigating factor (Waste Recycling and Processing Corp at [149] and Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 at [159]), it is nevertheless relevant to any assessment of the extent of the harm caused by the commission of the offence (Queanbeyan City Council (No 3) at [158]). 60Third, although the damage to the engraving cannot be remediated and approximately half of the engraving was removed by the excavation, it has not been completely destroyed. Notwithstanding that each case turns on its own facts, I am fortified by the decision in Garrett where the Court held that the complete destruction of Aboriginal artefacts did not result in the damage constituting "substantial" harm for the purpose of s 21A(2)(g) of the CSPA (at [82]). 61In making this finding, this is not meant in any way to diminish the significance of the engraving to the Aboriginal people of the area. It is simply a finding that on the evidence before the Court it is not possible to conclude to the requisite criminal standard that the particular act of Ausgrid caused "substantial" harm as that term is understood in s 21A(2)(g) of the CSPA. 62Having said this, I nevertheless have no hesitation in finding that the harm caused to the engraving by reason of the commission of the offence was moderate. I do not understand from its submissions, both oral and written, that Ausgrid would cavil with this characterisation. Ausgrid's State of Mind at the Time of the Commission of the Offence 63The offence is one of strict liability ("a person must not harm an Aboriginal object"), which means that mens rea is not an element of the offence. Nevertheless Ausgrid's state of mind is relevant to the determination of the objective seriousness of the offence (O'Neill at [78]). 64A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed accidentally (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42]-[43]; Gittany at [123] and Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [68] and [356]). 65In the present case, the parties agreed, and the evidence disclosed, that the offence was committed as a consequence of the mistaken belief by the Ausgrid environmental officer that the excavation was to take place on the northern, and not the southern, side of Orlando Road. There was a complete absence of any intention or premeditation to harm the engraving. In other words, the offence was committed negligently. Reasons for Committing the Offence 66The objective seriousness of an offence may also be measured by reference to the reasons for its commission (Rae at [47]; Gittany at [140] and Garrett at [120]). In the present case, the offence was not committed for a commercial motive (s 194(1)(h) of the NPWA). It was, as has been established above, the product of an innocent mistake. The Environmental Harm was Foreseeable 67The extent of the foreseeability of the environmental harm caused by the commission of the offence is a relevant objective circumstance of the offence (Camilleri's Stock Feeds at 700 and s 194(1)(d) of the NPWA). Ausgrid acknowledged that the risk of harm to the Aboriginal object was, at all times, reasonably foreseeable. Had Ausgrid properly verified that the excavation works were to take place on the southern side of Orlando Road in close proximity to the engraving of the footprint, damage to it was a natural consequence. There Were Practical Measures Available to Prevent the Risk of Harm 68Ausgrid accepted that practical measures were available to it to avoid the risk of harm to the Aboriginal object (s 194(1)(c) of the NPWA). Ausgrid employees could have, but did not, take adequate steps to identify the location of the excavation works for establishment of the substation. 69Ausgrid has subsequently implemented a number of practical measures since the commission of the offence. It conceded that these steps could and should have been taken before the incident to prevent the harm caused to the Aboriginal rock engraving. These include: (a) given that Ausgrid employees were aware that the Aboriginal rock engraving was located on the southern side of Orlando Road, a reasonable person in that situation would have taken steps to re-route the excavation works to avoid impact on the Aboriginal rock engraving. This measure was only taken by Ausgrid after the incident had occurred. If this measure had been taken before the incident, this would have prevented harm to the Aboriginal rock engraving; and (b) improvements made to Ausgrid's Environmental Services Unit's planning and environment processes to ensure that Aboriginal objects are not impacted. For example, Ausgrid has now changed its processes for contestable works to ensure that AHIMS site cards are provided for all projects such as the one the subject of this proceeding. Again, this measure was only taken by Ausgrid after the incident had occurred. If this measure had been implemented before the incident (for example, if Ausgrid had forwarded the AHIMS site card to Macaya), this may have prevented harm to the Aboriginal rock engraving. Ausgrid Had Control Over the Causes of the Harm 70At the hearing, Ausgrid resiled from a contrary suggestion contained in its written submissions and agreed that it had full control over the causes of the offence (s 194(1)(e) of the NPWA). Conclusion on Objective Circumstances, Especially Having Regard to the Views of the Aboriginal Community 71Having regard to the factors discussed, I find that the offence committed is one of low to moderate objective gravity. This is less than that posited by the prosecutor but more than that suggested by Ausgrid. 72In arriving at this conclusion, I have taken into account the views of Aboriginal persons who have an association with the Aboriginal object (s 194(1)(f) of the NPWA). 73I have also considered, and dismissed, a submission by the prosecutor that another relevant matter to be taken into account pursuant to s 194(2) of the NPWA was the fact that Ausgrid, as the determining authority for contestable works under Pt 5 of the EPAA, had an obligation under s 111 to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment as a result of the establishment of the substation and that it failed to discharge this duty. 74Given the nature of the error, namely, a mistaken belief that the excavation works would not take place near the rock engraving, that led to the damage to the Aboriginal object, it cannot be said that Ausgrid in fact breached its duty under s 111 of the EPAA. It did examine and taken into account to the fullest extent 'reasonably' practicable (Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38 at [85] and the authorities cited thereat) all matters likely to affect the environment as a result of the activity it was undertaking. The Subjective Circumstances of Ausgrid 75In addition to the objective seriousness of the offence, the Court is required to consider any personal or mitigating factors present in determining an appropriate sentence (Rae at [55]; Gittany at [144] and s 21A(3) of the CSPA). The subjective circumstances relevant to Ausgrid are those contained in ss 21A(3)(a), (b), (e), (f), (g), (i), (k) and (m) of the CSPA. These are discussed in further detail below. Lack of Prior Criminality 76Ausgrid does not have any prior convictions for any environmental offences (s 21A(3)(e) of the CSPA). Ausgrid is of Good Character 77But for the commission of this offence, in the absence of any evidence demonstrating the contrary, I find Ausgrid to be a corporate person of good character (s 21A(3)(f) of the CSPA). Early Plea of Guilty 78Ausgrid entered a plea of guilty at the first mention of the matter. It is therefore entitled to the full 25% discount (see ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]). Contrition and Remorse 79The 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). 80In Waste Recycling and Processing Corp, 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], applied in Queanbeyan City Council (No 3) at [223]; Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [85]-[89] and Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 at [101]). 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 personal appearance of corporate executives in court to give personal evidence of the defendant's regret and a plan of action to avoid repetition of the offence (at [214]). 81Applying these factors, I find Ausgrid has, as the prosecutor agreed, expressed contrition and remorse both in the affidavit of Mr Armstrong and at the hearing. It "unreservedly apologised" for the commission of the offence and the harm caused to the Indigenous community. It accepted full responsibility for having carried out the damage to the rock engraving. And since the commission of the offence, it has made a number of improvements to the Environmental Services Unit's planning and environmental processes to ensure that its activities do not harm Aboriginal objects in future. I therefore take this factor into account in mitigation of the penalty. Ausgrid Cooperated with Prosecuting Authorities 82At all times Ausgrid cooperated with OEH officers during the course of its investigations. It also cooperated during the proceedings by participating in the preparation of a statement of agreed facts. I find, therefore, that Ausgrid's actions in cooperating with, and providing assistance to, authorities is a factor to be considered in mitigation of the penalty (ss 21A(3)(m) and 23 of the CSPA). Ausgrid is Unlikely to Re-offend 83I find, particularly in light of Ausgrid's willingness to cooperate with the authorities and given its genuine expressions of contrition and remorse, that it is unlikely to re-offend (s 21A(3)(g) of the CSPA). Ausgrid Agreed to Pay the Prosecutor's Costs 84The prosecutor seeks, as is usual in this Court in sentencing for environmental offences, its costs. The Court is empowered to make such an order pursuant to s 257B of the Criminal Procedure Act 1986. 85Payment of the prosecutor's costs is an aspect of punishment and should be considered in the determination of the appropriate penalty as a factor that acts to reduce the penalty (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and Rae at [68]). 86Ausgrid has agreed to pay the prosecutor's legal costs in the sum of $36,000. I take the payment of these costs into account in setting an appropriate fine. Conclusion on Subjective Considerations 87The subjective circumstances of Ausgrid operate to mitigate to a considerable degree the penalty that would otherwise be imposed by the Court. The Appropriate Sentence to be Imposed 88The 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 89General deterrence is a highly relevant consideration in sentencing for offences committed against s 86 of the NPWA (s 3A(b) of the CSPA and O'Neill at [80]). In Rae, Preston J stated the following (at [9]-[10]): 9 Most importantly, the sentence of the court needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. The purpose of general deterrence is particularly relevant when imposing a sentence for offences of clearing of native vegetation contrary to law: see Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at [59], [71]-[80]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242 ; (2006) 145 LGERA 189 at [103]-[106]; Director-General, Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 at [31]-[33]; Director-General, Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 at [77]; Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4 ; (2009) 165 LGERA 256 at [81]-[88]; and Pittwater Council v Scahill [2009] NSWLEC 12 ; (2009) 165 LGERA 289 at [45]; Lamattina v Gould (2009) 103 SASR 587 at [73] and Minister for Environment, Heritage and the Arts v Rocky Lamattina & Sons Pty Ltd (2009) 167 LGERA 219 (17 July 2009) at [47]. 10 In the last mentioned case, Mansfield J stated at [47]: It is appropriate that the penalty be fixed in an amount which is likely to have a strong deterrent effect on the public and to demonstrate to the public and those whose business interests are conducted on land on which there is native vegetation that such conduct is seriously regarded by the community, as expressed in the legislation. The amount of the pecuniary penalty needs to demonstrate that such conduct will not be tolerated by the court. 90To achieve general deterrence, a penalty must be imposed that not only acts as a warning to others but also makes the cost of taking precautions to avoid committing the offence worthwhile (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359-360 and Bentley v BGP Properties at [139]-[141] and [148]-[157]). 91In the present case, I do not consider that there is more than a marginal need for specific deterrence. As stated above, it is highly unlikely that Ausgrid will re-offend and measures have been implemented to ensure that such an offence is not committed in the future. 92The prosecutor submitted that any sentence imposed should incorporate an element of general deterrence, particularly in circumstances where the defendant is a public corporate authority with statutory duties under Pt 5 of the EPAA (citing Garrett v Freeman (No 5) at [193] and [197]). 93I agree that the sentence should reflect the need for general deterrence, in part for the reasons submitted by the prosecutor. Public utility authorities, while I acknowledge that they provide a necessary service to the community, must nevertheless administer the obligations imposed on them under environmental and planning legislation with particular care and attention to ensure compliance with the law at all times. This duty is particularly acute in respect of the subject matter of this proceeding, namely, harm to Aboriginal objects. The potential for irreparable harm to such finite objects is, as the present case demonstrates, constant and, with it, the concomitant risk of irreparable harm to the cultural heritage of Indigenous, and non-Indigenous, persons. Consistency in Sentencing 94A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany at [179]-[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence that merely forms part of that range (Gittany at [182]). Of 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 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]). 95Typically the pattern of sentencing against which the present case falls to be determined would be through an examination of the relevant sentencing cases dealing with offences against s 86(2) of the NPWA. However, this is the first case relating to harm to an Aboriginal object since the 2010 amendments were enacted. 96The prosecutor furnished the Court with a table of sentencing decisions relating to disturbance or damage of Aboriginal objects prior to the 2010 amendments and for similar offences in other jurisdictions. Given the disparity between the statutory provisions and the penalties imposed due to the lower applicable maximum penalties, I found these cases to be generally of limited assistance. 97Two decisions of this Court nevertheless invite comparison. The first is Garrett, the facts of which were usefully summarised by Biscoe J in O'Neill, which I respectfully adopt (at [83]): 83 The parties invited comparison with Garrett v Williams. There the defendant, Mr Williams, pleaded guilty to three offences against s 90(1) of the NPW Act. He was fined a total of $1,400 and ordered to pay the prosecutor's costs. The prosecutor in that case did not submit that the circumstances of the offences made imprisonment a potential sentencing option: at [66]. There was some mitigation of the fine as a result of a restorative justice conference and the defendant's pledge to donate certain items, such as a four-wheel drive truck ($20,000), quad bike ($8,000), trailer ($3,000) and on-going fuel card to the value of $1,200 per annum: at [63]. Mr Williams was the sole director and secretary of Pinnacle Mines. During the construction of a side railing he destroyed a number of Aboriginal artefacts in two scatters or deposits, constituting the first two offences. While excavating a series of pits (referred to as costeans), Mr Williams also excavated one of the costeans across the boundary of a declared Aboriginal place. The damage to the Aboriginal place constituted the third offence. The first two offences are most relevant to the present case. Mr Williams had been informed of the existence of the Aboriginal artefacts; although he gave evidence that he did not see Aboriginal objects of the type he had seen on other sites: at [19]. The two objects destroyed represented two of 33 deposits of artefacts at that location: at [70]. Members of the local Aboriginal community provided substantial evidence regarding the distress caused by the offence. Preston CJ found that there had been a commercial motive to commit the first two offences. Mr Williams had decided to go ahead with building the rail line without approval because the cost of trucking ore to Port Pirie was causing his company financial hardship. Nevertheless, his Honour found that the harm caused was not "substantial" so as to make the offences aggravating: at [82]. 98In Garrett, the defendant pleaded guilty early, had no prior convictions, was of good character, expressed contrition and remorse and cooperated with the authorities. 99The second is O'Neill itself. In that case, the defendants were in the course of undertaking earthworks on land to build a house. They were put on notice by relevant departmental officers of possible disturbance to an Aboriginal shell midden located at the property. After a series of discussions with the department, the defendants, on their own initiative, relocated sections of the midden to a different site, disturbing and causing damage to the midden and possible Aboriginal ancestral remains. The defendants pleaded guilty to an offence under the former ss 86(b) and 90(1) of the NPWA (the maximum penalties were $11,000 and $5,500 in respect of each offence). The Court fined each defendant a total of $400. The evidence established that the defendants had deliberately destroyed the objects and that the midden was significantly disturbed and damaged. However, the defendants had entered an early plea of guilty and their conduct was a desperate reaction to a situation of severe financial pressure and the need to complete the construction of their home. 100The facts of this prosecution do not give rise to a culpability as great as the facts in either Garrett or O'Neill revealed because, in the present case, Ausgrid did not deliberately or knowingly harm the rock engraving. The cause of the harm to the Aboriginal object was one of innocent mistake. Moreover, although the harm to the engraving was severe it was not complete in the sense that it resulted in its total destruction. Similar to both Garrett and O'Neill, Ausgrid entered an early plea of guilty, has no prior convictions, is of good character, has demonstrated genuine contrition and remorse and provided assistance to the prosecuting authorities. An Order Under s 10 of the CSPA is Not Appropriate 101Ausgrid sought an order under s 10(1) of the CSPA that no conviction be recorded against it. This was opposed by the prosecutor. 102Relevantly, s 10(1) of that Act provides the Court with the following discretion in this regard: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. 103In deciding whether or not to make an order under s 10(1), the Court must have regard to the factors set out in subsection (3): (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 104The mandatory factors to which the Court must have regard set out in s 10(3) are not exhaustive (R v Paris [2001] NSWCCA 83 at [42] and s 10(3)(d)) and are disjunctive in operation (R v Paris at [42]). 105Four initial observations may be made about the scope of s 10 of the CSPA. First, there appears to be no prohibition against the application of s 10 to corporate offenders (see s 21 of the Interpretation Act 1987 and the definition of "person"). 106Second, notwithstanding the content of s 10(3)(b) of the CSPA, an order under s 10 can apply to offences that are not considered trivial in nature (R v Paris; Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312 at [38] and Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [114]). 107Third, historically, at least, an order under s 10 (or its former statutory incarnation, s 556A of the Crimes Act 1900) has been "rare" in environmental offences (Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22; Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 at [165]-[167]; Department of Environment and Climate Change v Sommerville; Department of Environment and Climate Change v Ianna [2009] NSWLEC 194 at [46] and Terrey at [109]). Having said this, the 'environmental' character of the offence is no bar to the application of s 10 of the CSPA. 108Fourth, the circumstances in which a s 10 order is appropriate have been considered to be limited where the environmental offence is one of strict liability (Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [70]-[71] and Terrey at [110]). However, the fact that the offence in question is an offence of strict liability does not preclude an order being made under the provision (Lavorato v R [2012] NSWCCA 61 at [126]). 109Having regard to the facts of this case, and mindful of the remarks made above, on balance I do not consider it appropriate that an order be made under s 10 of the CSPA, even though the commission of the offence was not premeditated. This is because: (a) the offence cannot be considered trivial in nature given the extensive destruction of the rock engraving; (b) there are no extenuating circumstances in which the offence was committed. The innocent negligence of Ausgrid is not sufficient in this regard; and (c) as Ausgrid acknowledged, there were practical measures that could have readily been taken to avoid the commission of the offence (Thorneloe at [178]). Publication Order 110Ausgrid has agreed to the making of a publication order pursuant to s 205(1)(a) of the NPWA in the form annexed to these reasons at 'A'. The circumstances of this case render such an order appropriate. Conclusion on Penalty 111Synthesising both the objective circumstances of the offence as mitigated by the subjective circumstances of Ausgrid, and having regard to the existing pattern of sentencing, I consider that the appropriate penalty to be imposed is a fine in the sum of $7000, discounted by 33% to $4690. Orders 112The orders of the Court are that: (1)the defendant is convicted of the offence as charged pursuant to s 86(2) of the National Parks and Wildlife Act 1974; (2)the defendant is fined the sum of $4690; (3)pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 the defendant is to pay the prosecutor's costs of the proceedings fixed in the sum of $36,000; (4)pursuant to s 205(1)(a) of the National Parks and Wildlife Act 1974, at its own expense, the defendant is to: (a) within 28 days of the date of this order, place a notice in The Sydney Morning Herald newspaper within the Early General News Section at a size of at least one-eighth of a page (9.2cm x 12.9cm), in the form at annexure 'A'; (b) within 28 days of the date of this order, place a notice in the Koori Mail newspaper within the first five- pages at a size of at least one-quarter of a page (18.6cm x 12.9cm), in the form at annexure 'A'; and (c) place a notice in the Environment Section of its next Annual Report at a size of at least one-quarter of a page, in the form at annexure 'A'; (5)within 14 days of the date of publication of each of the notices referred to in order 4 above, the defendant is to provide to the prosecutor a complete copy of the page of the publication in which the notice appears; and (6)the exhibits are to be returned. ********** Annexure 'A' Ausgrid has been convicted in the Land and Environment Court of one offence of harming an Aboriginal object. On 2 December 2010, a contractor carried out excavation works which damaged an Aboriginal rock engraving located at Cromer. The contractor was unaware that there was an Aboriginal rock engraving in the area because an environmental impact assessment reviewed by Ausgrid mistakenly stated that the works were not expected to impact on any Aboriginal objects. The damage to the rock engraving was caused by a mistake on the part of Ausgrid in failing to adequately review the environmental impact assessment in relation to the excavation works. The excavation works resulted in the Aboriginal rock engraving being damaged and a large portion of the original engraving being removed. Ausgrid was prosecuted by the Office of Environment and Heritage, NSW (OEH). Ausgrid pleaded guilty to the charge, was ordered to pay a fine of $4690 and ordered to pay OEH's legal costs in the amount of $36,000. This notice was placed by order of the Land and Environment Court and was paid for by Ausgrid. Amendments 23 April 2013 - typographical error Amended paragraphs: 9, 51, 53, 54, 55 23 April 2013 - Decision date amended Amended paragraphs: Coversheet 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: 22 April 2013