Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109

Land and Environment Court New South Wales

Medium Neutral Citation: Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Hearing dates: 19 June 2015 Date of orders: 19 June 2015 Decision date: 19 June 2015 Jurisdiction: Class 5 Before: Preston CJ Decision: Orders as set out at [150] Catchwords: OFFENCES AND PENALTIES – sentence – damaging reserved land – pollution of waters – objective seriousness of offences – environmental harm caused was at lower end of range of extent of harm – foreseeability of risk of environmental harm – practical measures to avoid environmental harm not taken – control over causes giving rise to the offences – offences not committed for financial gain – low overall objective seriousness – subjective circumstances of offender – record of prior convictions not aggravating factor – early pleas of guilty – offender's genuine remorse for the offences – offender of good corporate character – offender unlikely to reoffend – offender cooperated with authorities – appropriate penalties are fines – totality principle applies – no overlap of the elements of the offences – areas of overlap of aggravation in commission of offences – appropriate to adjust sentences to avoid double punishment and reflect total criminality involved – offender ordered to pay prosecutor's costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s 21A Criminal Procedure Act 1986 ss 257B, 257G Environmental Planning and Assessment Act 1979 Mining Act 1992 National Parks and Wildlife Act 1974 ss 2A, 30A(1)(c), 30D(d), 30G, 47J, 155(2), 156A(1), 156A(2), 194(1) Protection of the Environment Operations Act 1997 ss 3, 120(1), 122, 123(a), 241(1) National Parks and Wildlife Regulation 2009 cll 17(1)(c), 31(1)(c) Cases Cited: Cittadini v The Queen [2009] NSWCCA 302 Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Category: Principal judgment Parties: Chief Executive, Office of Environment & Heritage (Prosecutor in 14/50172) Environment Protection Authority (Prosecutor in 14/50173) Orica Pty Ltd (Defendant in both) Representation: Counsel: Mr E C Muston (Barrister) with Ms S F Cirillo (Barrister) (Prosecutors) Mr D Jordan SC with Ms A Bonner (Defendant)