Land and Environment Court New South Wales Medium Neutral Citation: Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106 Hearing dates: 9 August 2016 Date of orders: 18 August 2016 Decision date: 18 August 2016 Jurisdiction: Class 5 Before: Pain J Decision: (1) The Defendant is convicted of the offence as charged. (2) The Defendant is fined in the sum of $175,000. (3) Pursuant to the Criminal Procedure Act 1986 (NSW) s 257B, the Defendant is to pay the Prosecutor's costs of the proceedings in the sum of $55,000. (4) Pursuant to the Fines Act 1992 (NSW) s 122(2), one half of the fine imposed by order 2 is to be paid to the Prosecutor. (5) The exhibits are to be returned. Catchwords: SENTENCE – plea of guilty to breach of Environmental Planning and Assessment Act 1979 – failure to comply with conditions of consent – disturbance of identified Aboriginal cultural heritage site by change in mine haul road location – state of mind of defendant Legislation Cited: Environmental Planning and Assessment Act 1979, ss 5, 25, 75D, 76A(1), 125(1), Sch 6A Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22 Criminal Procedure Act 1986, s 257B Fines Act 1996, ss 4, 7, 122 Mining Act 1992 Threatened Species Conservation Act 1995 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 BT Goldsmith Planning Services Pty Ltd v Bankstown City Council [2005] NSWLEC 210 Burwood Council v Doueihi [2013] NSWLEC 196; (2013) 200 LGERA 152 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Director-General, Department of Planning and Infrastructure v Integra Coal Operations Pty Ltd [2012] NSWLEC 255; (2012) 192 LGERA 281 Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hawkesbury City Council v Mushroom Composters Pty Ltd (No 2) (1996) 89 LGERA 132 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271 Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246 Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 R v O'Neill [1979] 2 NSWLR 582 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 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: Secretary, Department of Planning and Environment (Prosecutor) Charbon Coal Pty Ltd (Defendant) Representation: COUNSEL: E C Muston SC and N M Kelly (Prosecutor) J E Davidson (Defendant) SOLICITORS: Department of Planning and Environment (Prosecutor) Ashurst Australia (Defendant) File Number(s): 2016/155386 Judgment Sentence for breach of Environmental Planning and Assessment Act 1979 1. The Defendant Charbon Coal Pty Ltd has pleaded guilty to the offence that between about 6 April 2012 and 31 December 2014 at the Charbon Colliery (Colliery) near Kandos, it committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in not complying with the conditions of the Pt 3A approval to which it was subject contrary to s 75D(2) of the EPA Act. The offence was committed when a haul road was built in a location other than the approved location. 2. The offence is one of strict liability and the Defendant's mens rea is not an element of the offence. As the Defendant has pleaded guilty it has admitted the essential elements of the offence per R v O'Neill [1979] 2 NSWLR 582 at 588. 3. Relevant provisions of the EPA Act at the time of the offence are extracted below. Section 75D was repealed with Pt 3A on 1 October 2011. Section 75D continued to apply to the project after the repeal by virtue of the provisions of Sch 6A of the EPA Act. 75D Minister's approval required for projects (1) A person is not to carry out development that is a project to which this Part applies unless the Minister has approved of the carrying out of the project under this Part. (2) The person is to comply with any conditions to which such an approval is subject. … 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. … Statement of Agreed Facts 1. The parties agreed a statement of facts (SOAF) as follows (tabs omitted): 1 Charbon Coal Pty Limited (the defendant) operates the Charbon Colliery, an open cut and underground coal mining operation, located off Cooper Drive, Charbon which is approximately 3 kilometres south of Kandos. 2 The defendant is a wholly owned subsidiary of Centennial Coal Company Ltd (Centennial). 3 On 7 September 2010 Project Approval MP08_0211 was granted pursuant to s 75J of the Environmental Planning and Assessment Act 1979 for the expansion of the Charbon Colliery (described as the Charbon Coal Project)(Project Approval). A copy of the Project Approval appears behind tab 1 of the folder of documents relevant to sentence marked CC-1. Appendix 2 of the Project Approval depicts several open cut mining areas permitted by the development, including the Western Outlier open cut pit and an extension to the existing Southern Open Cut pit (Southern Open Cut Extension). 4 The land to which the Project Approval applies is defined in Appendix 1 of the Project Approval (the Project Area). 5 Appendix 2 of the Project Approval and sections 3.1.3, 3.5.2 and 3.9.1 of the Environmental Assessment (EA) and condition 2 in schedule 2 of the Project Approval required any run of mine (ROM) coal haul road between the Western Outlier and the Southern Open Cut Extension (the Haul Road) to be constructed generally in accordance with the location depicted in figure 3.2 of the EA. A copy of the EA, excluding appendices, appears behind tab 2 of CC-1. 6 As described in sections 3.2.4.7 and 5.6.5.2 of the EA, and required by condition 2 in schedule 2 of the Project Approval, the Haul Road was to be constructed generally in accordance with the location identified in Appendix 2 of the Project Approval and figure 3.2 of the EA in order to ensure that Indigenous heritage site CH-OS6 was not disturbed. The Haul Road was originally proposed to be located further to the north than the location shown in figure 3.2 of the EA, and was moved to the south following the identification of open site CH-OS6. 7 Big Rim Pty Limited (Big Rim) was contracted by the defendant to manage and carry out all open cut operations at the Charbon Colliery. Big Rim's role at the Charbon Colliery included construction and maintenance of roads for all load and haul operations. A copy of Mining Services Agreement CH55 Opencut Mining Services between Big Rim and the defendant appears behind tab 3 of CC-1. 8 During the relevant period of mining operations at the Charbon Colliery, there were two discrete mining operations carried out. They were: a. underground mining by the bord and pillar method. This involved Charbon's workforce of approximately 100 employees; and b. surface mining by open cut operations. This involved Big Rim's workforce of approximately 42 employees. 9 At all relevant times, Big Rim was: a. contractually responsible for open cut operations at the Charbon Colliery; b. contractually required to comply with the conditions of the Project Approval; c. contractually required to comply with all directions from the defendant; and d. contractually not permitted to damage or destroy an item of an archaeological, heritage or native title nature without the defendant's prior written approval. 10 From 5 April 2012 the defendant was permitted to access the land over which the Haul Road was built pursuant to two compensation agreements between the defendant and a private landowner (the 2008 Agreement and the 2012 Agreement). A copy of Plan PC6171C, depicting the area of land over which the 2012 Compensation Agreement applied appears behind tab 4 of CC-1. A copy of Plan PC6171B, depicting the area of land over which the 2008 Agreement applied appears behind tab 5 of CC-1. 11 In April 2012 Geoff Hillier, Open Cut Supervisor for Big Rim, and Matt Gray, Environment and Community Manager for the Charbon Colliery, walked a route for the Haul Road proposed by Big Rim. The proposed location for the Haul Road was in a location further to the north than the approved location depicted in Figure 3.2 of the EA. During this walk, Matt Gray indicated to Geoff Hillier some areas which needed to be avoided by construction of the Haul Road. These areas included the area of Indigenous heritage site CH-OS6. Matt Gray may not have made direct reference to Indigenous heritage site CH-OS6 in his conversation with Geoff Hillier. 12 Matt Gray was comfortable that the route walked (with areas to be avoided) was appropriate. At the time of forming that view, Matt Gray: a. knew that that the Haul Road would be constructed in a location different to the approved location; b. knew that the Haul Road would be constructed in a location in proximity to Indigenous heritage site CH-OS6, but was comfortable that Indigenous heritage site CH-OS6 would not be impacted by construction; and c. took no alternative steps to protect Indigenous site CH-OS6 from harm, such as by complying with the site specific requirements as set out in the Aboriginal Cultural Heritage Management Plan (ACHMP) (set out at [21] below). 13 In or about April 2012 Big Rim constructed the Haul Road in its current location. A copy of Plan PC5961, depicting the approved location of the Haul Road and the location of the Haul Road as constructed, appears behind tab 6 of CC-1. 14 The defendant's Manager of Mining Engineering and Mine Manager were aware of the construction of the Haul Road and did not investigate whether the location was compliant with the Project Approval. Damage caused by the construction of the Haul Road Damage to the location of Indigenous heritage site CH-OS6 15 One Indigenous heritage artefact (the Identified Artefact) and five possible artefacts were recorded at site CH-OS6 for the purposes of the Indigenous Heritage Assessment carried out as part of the EA. The Identified Artefact and five possible artefacts were not found in situ. Site CH-OS6 was described as being currently disturbed by an existing farm track and as having been disturbed by haul roads and truck parking in the Indigenous Heritage Assessment. The New South Wales Aboriginal Heritage Information Management System entry for site CH-OS6 described its condition as "very disturbed". A copy of the Indigenous Heritage Assessment appears behind tab 7 of CC-1. 16 Overall, Indigenous heritage sites recorded for the purposes of the Indigenous Heritage Assessment were considered to be of high cultural significance by local Indigenous community representatives. The Indigenous Heritage Assessment concluded generally that the scientific significance of the Indigenous heritage sites recorded as open sites, including site CH-OS6, were unable to be determined in the absence of further investigation prior to any impacts to the sites. However, site CH-OS6 was subsequently assessed as being of low scientific archaeological significance. Considered together, all sites recorded for the purposes of the Indigenous Heritage Assessment, including site CH-OS6, were assessed on a preliminary basis as being of low-moderate public significance. 17 The ACHMP was prepared and submitted to the Department of Planning and Environment (the Department) for approval in accordance with the conditions of the Project Approval. The ACHMP was finalised in January 2012 and approved by the Director-General's delegate on 22 November 2012. A copy of the ACHMP appears behind tab 8 of CC-1. 18 The ACHMP included a management strategy for Indigenous heritage sites associated with the Project Approval, including site CH-OS6. In the case of CH-OS6, this included a monitoring program to avoid inadvertent impact during construction and project operations around the Southern Open Cut pit area. 19 Section 8.1.4 of the ACHMP detailed a monitoring and management plan specifically for CH-OS6: At present, Charbon Coal is in a dispute with the land owner so, a minimum buffer boundary around CH-OS 6 (#36-6-0717) was not determined during the site visit by RPS personnel. Charbon Coal has advised that no mining activity or disturbance will take place in the vicinity of the site until appropriate measures were taken to protect and demarcate a buffer boundary around CH-OS 6 (#36-6-0717). If proposed mining activities, development or clearance is to take place near CH-OS 6 (#36-6-0717), the following monitoring and management measures must be followed prior to any works. The management plan for CH-OS 6 (#36-6-0717) first requires Section 8.1.1 of this document to be read and understood. Since a minimum recommended buffer boundary was not ascertained due to access limitations, a heritage consultant (RPS), in consultation with Aboriginal stakeholders, must ground truth the site and demarcate a buffer zone as soon as reasonably possible prior to any proposed works. It is also advised that visible signage stating "No Entry" be erected outside the buffer zone, preferably facing the graded track, so that Charbon Coal personnel and contractors are made aware not to trespass beyond the high visibility buffer zone delineated around the site. As a suggestion, steel star pickets (or a comparable durable material) should be pegged around the site at a distance equal to or greater than the suggested buffer boundary. The high visibility fencing must be maintained for the life of mining operations near the existing Southern Open Cut pit area and the use of the graded track for mining related purposes. 20 Section 8.1.1 of the ACHMP stated: At the outset, relevant on-site personnel and the land manager should have read and understood this document and a copy of this document should be kept on-site for ease of reference. Before the commencement of works the land manager, in liaison with on-site personnel, should identify whether the following activities are proposed in proximity to 8 Trunk Open Cut pit area: use and transportation of heavy machinery, pre-clearing, initial excavation and/or similar earthworks activities. The location(s) of such activities should be identified, in addition to the intended start date. 21 A summary of monitoring and management of site CH-OS6 was set out in a flow chart, which included the following steps: a. identification of proposed activities in close proximity to site CH-OS6; b. further consultation with heritage consultants and Aboriginal stakeholders prior to conducting proposed activities to determine the requirements for cordoning off the site; c. cordoning off the site using high visibility fencing and warning signs to advise Charbon Coal personnel and contractors not to disturb the site; and d. maintaining visibility buffer fencing around the site for the life of the proposed activity. 22 None of the physical measures identified in the ACHMP to protect site CH-OS6 from impacts were in place at the time of an inspection by Departmental officers on 20 May 2015. 23 The location of site CH-OS6 was impacted by the construction of the Haul Road. The construction of the Haul Road harmed the location of site CH-OS6. The level of harm to the Identified Artefact is unknown. If it remained in the location originally identified in 2009, the Identified Artefact is likely to have been buried or moved. If movement occurred, it would be classified as a kind of harm. Site CH-OS6 is now considered to have no scientific value and no cultural value. Archaeologically, the consequence of the harm is considered to be minimal. Owing to the view expressed by local Indigenous community representatives that overall, all Indigenous heritage sites were considered to be of high cultural significance, culturally, the consequence of the harm is considerable given the loss of access to the site. Damage to vegetation 24 The EA for the Project identified (at 5.3.7) the clearing of approximately 45.6 ha of native vegetation, including 13.3 ha of White Box Yellow Box Blakely's Red Gum Woodland (Box Gum Woodland), listed as a threatened ecological community under the Threatened Species Conservation Act 1995 (NSW). Box Gum Woodland is also listed as a threatened ecological community, identified as White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). 25 2.04 ha of vegetation was cleared as a result of the construction of the Haul Road. 1.21 ha would have been cleared had the Haul Road been built in the approved location. 26 0.59 ha of Box Gum Woodland was cleared as a result of the construction of the Haul Road. 27 The removal of this Box Gum Woodland does not constitute a significant impact to the Box Gum Woodland threatened ecological community. 28 It is likely that habitat features were removed as a result of the construction of the Haul Road. The area of vegetation cleared as a result of construction of the Haul Road included potential habitat for threatened fauna species. 29 The removal of potential habitat would not have significantly impacted any threatened fauna species. 30 No Box Gum Woodland would have been cleared had the Haul Road been built in the approved location. 31 The Ecology Assessment prepared as part of the EA determined that approximately 13.3 ha of Box Gum Woodland would be disturbed by the Charbon Coal Project. In the Director-General's Environmental Assessment Report for the Charbon Coal Project (D-G's Report) at pages 11-15, it was recommended that this be offset at a ratio of 4.4:1, in particular requiring an offset of 57 ha. A copy of pages 11-15 from the D-G's Report appears behind tab 9 of CC-1. 32 Condition 1 of Schedule 4 of the Project Approval required the defendant to implement a Biodiversity Offset Strategy to the satisfaction of the Director-General which included an offset of 57 ha of Box Gum Woodland. 33 In order to satisfy condition 1 of Schedule 4 of the Project Approval, the defendant produced a Compensatory Habitat Management Plan (CHMP) which was approved by the Director-General as an appendix to the defendant's Landscape Management Plan on 22 November 2012. A copy of the CHMP is behind tab 10 of CC-1. A copy of the Director-General's letter to the defendant approving the Landscape Management Plan appears behind tab 11 of CC-1. 34 The quantum of Box Gum Woodland offset areas provided by the CHMP, 93 ha, is in excess of the quantum of Box Gum Woodland offset areas required by the Project Approval. Of the 93 ha of Box Gum Woodland offset areas, 80 ha were located offsite. The 80 ha of offsite Box Gum Woodland offset areas were secured by the defendant and transferred to the New South Wales National Parks and Wildlife Service on 14 October 2015. A copy of the settlement sheet for the transaction appears behind tab 12 of CC-1. An email from the New South Wales Crown Solicitor's Office to Centennial confirming settlement of the transaction appears behind tab 13 of CC-1. Current status of the Charbon Colliery 35 Underground mining operations ceased at the Charbon Colliery on 7 March 2014. 36 Open cut mining operations ceased at the Charbon Colliery on 14 August 2015. 37 The defendant is currently working with State agencies to develop and implement the required plans for effective mine closure. The defendant is preparing an environmental impact statement and accompanying State Significant Development application which will seek consent for the rehabilitation of the Charbon Colliery[.] Prior offences 38 The defendant has no record of prior convictions for offences under the Environmental Planning and Assessment Act 1979. 39 On 16 March 2016 the defendant was issued with a penalty notice for [a] breach [of] s 125(1) of the Environmental Planning and Assessment Act 1979 by failing to carry out the Charbon Coal Project generally in accordance with the environmental assessment for the project due to stockpiling overburden out-of-pit on 31 October 2014 contrary to condition 2 of Schedule 2 of project approval 08_0211 and s 75D(2) of the Environmental Planning and Assessment Act 1979. On 11 April 2016 the defendant paid the fine of $3000 imposed by the penalty notice. The penalty notice related to the open cut operations and not to the underground mining operations. Guilty Plea 40 The defendant entered a plea of guilty at the earliest opportunity. Assistance to authorities 41 The defendant has fully cooperated with the New South Wales Department of Planning and Environment (the prosecutor) during its investigation into the construction of the Haul Road. Specifically, the defendant has: a. responded to all statutory notices for information and records; b. facilitated the prosecutor's inspections of the Charbon Colliery; and c. agreed to a statement of agreed facts. Evidence Affidavit of Dr Kelleher 1. The Prosecutor read the affidavit of Dr M Kelleher Aboriginal archaeological heritage expert sworn 28 April 2016. Dr Kelleher was engaged by the Prosecutor to undertake an Aboriginal archaeological impact assessment of site CH-OS6 and the consequences of the disturbance of the site by construction of the haul road. Dr Kelleher's Aboriginal Archaeological Impact Assessment Report dated March 2016 was annexed to his affidavit. 2. In his report Dr Kelleher reviewed the project approval, environmental assessment and the Aboriginal Cultural Heritage Management Plan before outlining the results of his assessment. Dr Kelleher concluded that based on his review of the available background information as well as consideration of surrounding archaeological sites and landscape that the site represents low scientific archaeological significance. The identified objects do not exhibit aesthetic value, no historic value has been identified for the objects or location of the site, the quantity of Aboriginal objects is low, the objects are not rare, and are of low standard quality and are not representative of Aboriginal objects within the larger landscape. With regard to the social value of the site, the 2009 archaeological assessment referred to at [9] of the SOAF deemed the value to be high as all sites in the area were considered to be of high Indigenous significance. Dr Kelleher concluded that this assessment of high social value was based on the social value of all sites in the area combined as a single social unit rather than on the basis of the value of site CH-OS6 alone. The report included a photograph of site CH-OS6 taken in 2009 which showed a farm track in that location as well as some photographs of "possible artefacts" found at the site. An aerial photograph was also included which identified site CH-OS6 at the intersection of two tracks. 3. On the impact of the haul road on site CH-OS6, the inspection by the Prosecutor together with representatives of the Defendant on 20 May 2015 showed that the site was completely impacted, being now located under or adjacent to a traffic island in the centre of a number of haul roads. A photograph in the report showed the location of site CH-OS6 under the traffic island. An aerial photograph identified the site under the haul road. Archaeologically, Dr Kelleher stated that the consequence of the harm to the low value scientific site was minimal, as it was already highly disturbed. The cultural harm was significant as there is now no access to the site. Site CH-OS6 now has no archaeological or social value. In summary Dr Kelleher found that the archaeological consequences were minimal but that the cultural consequences were considerable. Affidavit of Mr Cairney Circumstances after offence 1. The Defendant read the affidavit of Mr M Cairney Executive General Manager of Operations Centennial Coal (Defendant's parent company) (Centennial) sworn 1 July 2016. Mr Cairney described the operations at the Colliery and the role of Big Rim Pty Ltd (Big Rim) the independent contractor that carried out the open cut coal mining at the Colliery from 2004 to 14 August 2015. Mr Cairney first became aware of material compliance issues in relation to Big Rim's operations at the Colliery after a compliance inspection by the Department of Planning and Environment on 22 July 2014. On that day the Defendant orally instructed Big Rim not to conduct mining operations outside of areas approved in the project approval, and confirmed the same by letter dated 12 August 2014. The Defendant issued a notice of default and suspension to Big Rim on 23 December 2014, which was lifted on 5 January 2015 after agreement was reached on Big Rim's compliance with its contractual obligations. Big Rim agreed to follow a protocol to ensure that the mining activities were carried out in accordance with the conditions of approval. Mr Cairney stated that in the second half of 2014 and in 2015 the Defendant and its parent company carried out a review of Big Rim's operations at the Colliery. That review identified the disturbance to the registered archaeological site CH-OS6 by earthworks that occurred in 2012. On 22 June 2015 the Defendant informed the Office of Environment and Heritage by letter that the earthworks had impacted on site CH-OS6 [the impact on site CH-OS6 had previously been identified to the Prosecutor and the Office of Environment and Heritage during an inspection of the Colliery on 20 May 2015]. Contrition and remorse 1. On behalf of the Defendant and its parent company, Mr Cairney acknowledged the Defendant's responsibility for the haul road being constructed in a location other than the authorised location. He extended an apology to the local indigenous community and to the Court. A media release dated 22 April 2016 in which the Defendant and its parent company expressed their regret and apology for the offence was annexed to Mr Cairney's affidavit. Mr Cairney acknowledged that the Defendant was complicit in the breach and sanctioned it. Mr Cairney attested to his actions in sending letters to the six registered Aboriginal stakeholders to report the impact to site CH-OS6 and to apologise for the breach. Biodiversity offsets 1. Mr Cairney outlined the biodiversity offsets both on and offsite secured and conserved by the Defendant in accordance with the project approval and the compensatory habitat management plan. The offset area known as the Nullo Mountain Offset Land was transferred to the New South Wales National Parks and Wildlife Service on 14 October 2015. The Defendant's engagement with the community 1. Mr Cairney attested that before the Colliery ceased operations the Defendant was an active participant in the local community. For example the Defendant supported the initiative for train based tourism in the area by providing assistance and resources and supported local schools with financial contributions. The Defendant sponsored local events such as the Rylstone StreetFeast a community food and wine event, sponsored the 2014 Kandos Centenary Celebration and made financial contributions to local community organisations and sporting organisations and events. The Defendant entered into an Access Agreement with the Kandos Museum permitting the Museum to conduct tours of the Colliery Box Cut and arranged for representatives from the Kandos Museum and Rylstone Kandos Business and Tourism Inc to attend a workshop in Newcastle about capacity building in communities facing decline. Initiatives taken by the Defendant and its parent company to minimise the likelihood of a breach occurring again 1. Since 2014 the Defendant's parent company has adopted new regulatory compliance initiatives including organisational restructuring, development and implementation of a group-wide compliance database and implementation of mandatory legal compliance training. In late 2014 new positions were created in the parent company, being the Executive General Manager Risk and Compliance, the General Manager Environmental and Approvals, the Group Environment Manager and the Group Approvals Manager. At that time an Environmental and Approvals Business Management Framework was implemented which included requirements for periodic review and auditing of management plans and consent conditions, as well as a Contractor Risk Assessment Tool to monitor contractor compliance. An electronic compliance database is currently in the process of implementation across the parent company's mine sites to help ensure compliance with all relevant approval conditions. Since October 2015 all managerial staff at the parent company have been required to complete mandatory online environmental law legal compliance training. Statement of Mr Gray 1. Mr Gray the former Environment and Community Manager of the Defendant prepared a statement dated 22 June 2016 that was annexed to the affidavit of Mr Cairney. It stated as follows (annexures omitted): 1. My name is Matt Gray. 2. From 22 August 2005 to 1 October 2009 I was employed by Centennial Coal Company Ltd (Centennial) as an Environmental Officer in a team with duties in respect of several of Centennial's western coal mines. 3. From 1 October 2009 to 12 April 2013 I was employed by Centennial's Charbon Coal Pty Ltd (Charbon) in the position of Environment and Community Manager. 4. I have been provided with copies of the Prosecutor's Draft Statement of Agreed Facts and the Record of Interview of Geoff Hillier, dated 3 December 2015. I have read both documents. 5. I have also been provided with a copy of Plan PC5961, depicting the approved location of the haul road, the location of the haul road as constructed and the location of Indigenous heritage site CH-OS6. I have viewed and re-familiarised myself with Plan PC5961. A copy of PC5961 is attached to this statement as Annexure "A". 6. I can recollect walking Big Rim's proposed route for the haul road with Geoff Hillier in 2012. Geoff Hillier was anxious that the haul road construction occur, because the continuity of Big Rim's mining operations depended on having the haul road constructed so that truck access was possible from the existing southern open cut extension to the approved western outlier open cut. The construction of the haul road had been delayed because of Charbon's difficulties in obtaining a land access agreement with Mr and Mrs Wozniak who owned land which was traversed by the approved haul road, as well as Big Rim's proposed route for the haul road. 7. I was aware that the haul road route proposed by Geoff Hillier did not conform with the route shown in the approved Environmental Assessment, but agreed with him that that approved route was sub-optimum, mainly because of its steeper grade than the proposed route. 8. It is my recollection that after walking Geoff Hillier's proposed route for the haul road, I was comfortable that Indigenous heritage site CH-OS6 would not be impacted by construction because during the walk, I identified to Geoff Hillier areas which needed to be avoided by the haul road. These areas included the location of the Indigenous heritage site. 9. I may not have made direct reference to Indigenous heritage site CH-OS6 in conversation with Geoff Hillier during the walk, but I knew where the site was located and the area I told him needed to be avoided by the haul road included the location of the Indigenous heritage site. 10. In Geoff Hillier's Record of Interview, on page 7, he refers to our walk and the conversation during it and states: We actually walked - he went out and looked around out - we walked the route and discussed where the road would go, because he had to look at - he said there are a couple of trees we had to - had to go around or miss, and we had, due to the drainage arrangements on site, there was a major contour drain running around there, so we had to cross over it in one spot. And then - and then say on the top side of it… 11. The conversation that is reproduced from Geoff Hillier's Record of Interview in my paragraph 10, is the conversation when I gave him directions which were designed, amongst other things, to ensure that Indigenous heritage site CH-OS6 was avoided. That heritage site is in very close proximity to the contour drain, as illustrated in the figure and text contained on page 5-40 of the Indigenous Heritage Assessment Report produced by OzArk Environmental Heritage Management Pty Ltd in 2009 as part of the Environmental Assessment for the Part 3A Project. A copy of page 5-40 is Annexure "B" to my statement. 12. I agreed with Geoff Hillier's view that the route shown for the haul road in the approved Environmental Assessment was problematic. I was comfortable that Big Rim's proposed route for the haul road was appropriate because it: (a) still avoided the Indigenous heritage site, which was the reason that the Environmental Assessment had identified the more southern location for the haul road, rather than the location along the existing farm track; (b) each route involved limited small loss of native vegetation which would be offset by Charbon's biodiversity offsets; and (c) it was a practical solution to a time critical need to provide an access road between the southern open cut extension and the approved western outlier open cut. Purposes of sentencing 1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) identifies the purposes of sentencing. It states: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 1. Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors. Objective circumstances Relevant factors to determine the objective gravity of an offence under the EPA Act were identified in 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] and Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [14] including the maximum penalty, the objective harmfulness of the defendant's actions, the reasons for the commission of the offence, the state of mind of the offender, the foreseeability of the risk of harm, the practical measures that could have been taken to avoid harm and the defendant's control over the causes of the harm. Another relevant factor can be consideration of the statutory scheme in which the offence provision appears: see Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [48] and Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35]. The nature of the offence 1. An important consideration in this case is upholding the statutory scheme for orderly planning in New South Wales under the EPA Act, as identified in numerous cases including Menai and Burwood Council v Doueihi [2013] NSWLEC 196; (2013) 200 LGERA 152. In Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Preston J said at [46]: 46 There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council at [72]-[80]; Byres v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council at [104]; and Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [58]. Development must be carried out in accordance with the terms of the development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council at [105]. 1. The objects of the EPA Act are outlined in s 5 and include: 5 Objects The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, … (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and … 1. This object is achieved partly through the system of planning approval, which requires that a person have development consent to carry out development (other than development that does not require consent). This system ensures through public consultation and proper assessment of applications the efficient and sustainable development of New South Wales. 2. It is necessary to understand the assessment framework required of the Defendant as part of obtaining project approval. The summons specifies the failure to comply with ss 3.1.3, 3.2.4.7, 3.5.2 and 5.6.5.2 of the Environmental Assessment (EA) for the project, which condition 2 of the project approval required compliance generally in accordance with. 3. Section 3.2.4.7 states that the proposed western outlier to southern outlier haul road was moved to the south to ensure that site CH-OS6 would not be disturbed. Section 5.6.5.2 refers specifically to site CH-OS6 and identifies that the proposed haul road was relocated to ensure that the identified site would not be disturbed. Section 5.6.6 identifies management measures that were required to be implemented to ensure that site CH-OS6 was not inadvertently disturbed as a result of the project. Measures included the preparation of an indigenous heritage management plan which in the case of CH-OS6 required a plan to ensure appropriate buffers, barriers and signage around the site. The SOAF at [17]-[21] identified the measures required specifically for site CH-OS6 in the Aboriginal Cultural Heritage Management Plan (ACHMP). 4. The parties agreed that none of the physical measures identified in the ACHMP were in place at the time of the inspection by departmental officers on 20 May 2015, SOAF at [22]. The time of the offence extended over two and a half years from 6 April 2012 to 31 December 2014 with agreement in the SOAF at [13] that the haul road was constructed in its current location in April 2012. The circumstances leading up to the decision to alter the haul road route are identified in the statement of Mr Gray former Environment and Community Manager of the Defendant and the SOAF at [11]-[12]. No mention was made in the statement of any buffer, barrier or signage around CH-OS6 and Mr Gray was not sure he referred to site CH-OS6 specifically when talking to Mr Hillier of Big Rim or subsequently. The inference arises that no buffer, barrier or signage around the site existed at the time of the conversation with Mr Hillier or at the time the haul road was constructed in its current location by Big Rim. 5. The SOAF states at [14] that the Defendant's Manager of Mining Engineering and Mine Manager was aware of the construction of the road and did not investigate whether the location was compliant with the project approval. The Defendant had responsibility for complying with the EA. The substantial and easily avoided failure to comply with the conditions of approval in relation to the protection of Aboriginal heritage site CH-OS6 is evident. The erection of a barrier, the creation of a buffer around CH-OS6 and signage, all simple measures, would very likely have prevented the harm occurring. 6. The statement of Mr Gray and the SOAF do not disclose precisely where the haul road route he approved was located compared to what was built by Big Rim. It is apparent from plan PC5961 attached to Mr Gray's statement and in SOAF tab 6 that the alteration of the haul road location was not a minor alteration allowed by condition 2 stating the project was to be carried out "generally in accordance with" the EA. The current haul road is in a markedly different location to that approved as part of the project approval. That the change in haul road location did not accord with the EA is also confirmed by the specific text in the EA outlined at par 21 above which specifically identified the need to alter the original location of the road to ensure no interference with CH-OS6. While the actions of Big Rim compounded the breach of the project approval by further altering the road location to pass over site CH-OS6 the breach of the condition of approval occurred as much as a result of Mr Gray's actions. Mr Cairney stated in his affidavit that the Defendant "was complicit in the breach and sanctioned it". 7. Another consequence of the failure to comply with the conditions of approval relates to the additional clearing of vegetation necessitated by the current haul road location. The extent of the impact of this is submitted by the Defendant to be ameliorated by the offset requirements in the project approval which is sufficient to include the amount cleared. The failure to comply with the planning scheme is exacerbated by the environmental harm caused in relation to the clearing of vegetation as Mr Gray's assumption of acceptability of the variation to the approved route usurped the ability of the approval authority to assess that impact. 8. I consider that the actions of the Defendant in facilitating construction of the haul road in a markedly different location to where it was approved without implementing any measures to physically alert Big Rim to the site CH-OS6 location or provide specific verbal instructions about the site's existence was a substantial and easily avoided failure. 9. I note that the Defendant's parent company took substantial steps in 2014 to ensure that in future legal compliance with its project approval obligations occurred, as detailed in Mr Cairney's affidavit summarised above at par 8. While this is commendable and a matter I take into account later in considering the likelihood of reoffending the scale of changes made by a very large mining enterprise which has operated seven underground coal mines in New South Wales for many years, purchasing the Colliery in 1994 for example, is also concerning in that such measures should have been in place well before. Maximum penalty 1. The maximum penalty for the offence committed is a relevant consideration reflecting the seriousness of the offence as nominated by the Parliament of New South Wales, per Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; see also Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372. At the time of the offence the maximum penalty for a breach of s 125(1) for a corporation was $1,100,000. The maximum penalty for a breach of s 125(1) for a corporation has since been increased substantially. That is not a relevant factor in this sentence. Section 19(1) of the CSP Act states that if the penalty for an offence increases the new penalty applies only to offences committed after the commencement of the increase. Environmental harm 1. The parties agreed in the SOAF at [23] that site CH-OS6 was harmed by the construction of the haul road. The parties agreed that the archaeological harm was minimal. The harm in terms of cultural and social value was considerable given the loss of access for indigenous people to the site. Mr Kelleher's opinion to that effect based on his report annexed to his affidavit is reflected in [23] of the SOAF. The Defendant sought to minimise the significance of the site because the cultural significance attributed to it was the same attributed to all sites in the area. I do not consider that undermines the extent of cultural harm caused. 2. The SOAF at [25] states that 2.04 ha of vegetation was cleared as a result of the construction of the haul road. If the road had been built in the approved location 1.21 ha would have been cleared. Of the 2.04 ha that was cleared, 0.59 ha of Box Gum Woodland was cleared, which is listed as a threatened ecological community under the Threatened Species Conservation Act 1995 (NSW). The construction of the haul road in the approved location would not have resulted in any clearing of the Box Gum Woodland (SOAF at [30]). At [27] of the SOAF the parties agreed that "the removal of this Box Gum Woodland does not constitute a significant impact to the Box Gum Woodland threatened ecological community." The parties also agreed that the area of vegetation cleared as a result of the construction of the haul road included potential habitat for threatened species (SOAF at [28]). The clearing would not have significantly impacted any threatened fauna species (SOAF at [29]). 3. I have considered elsewhere in BT Goldsmith Planning Services Pty Ltd v Bankstown City Council [2005] NSWLEC 210 the inappropriateness of a submission that only a small area of, here threatened ecological community, was cleared. Such a submission ignores cumulative impacts of multiple clearing events which have resulted in that community being threatened. I consider that the environmental harm caused by the offence was in the low to moderate range. Foreseeability of harm 1. The Defendant concedes that if it had been aware that the haul road was to be constructed in the current location the risk to site CH-OS6 was foreseeable. The Defendant relied on [8] of Mr Gray's statement where he stated that he was comfortable that site CH-OS6 would not be impacted. Given the lack of the required measures at the site and the absence of any explanation to Mr Hillier that a particular route was required to avoid the unidentified (to him) site this offence was entirely foreseeable. Control over causes 1. The Defendant accepts that it had control over the causes of the offence. Defendant's state of mind 1. The Defendant's reasons for committing the offence are relevant in determining the appropriate penalty, see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed, Gittany at [123]. Pursuant to s 21A(2)(o) of the CSP Act, it is an aggravating factor if the offence was committed for financial gain. The Prosecutor bears the onus of proof beyond reasonable doubt of establishing that the offence was committed negligently or recklessly. 2. The applicable principles were summarised by Pepper J in Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110: 135 Negligence in a criminal context means more than a breach of duty of care. To amount to criminal negligence (Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 at [81]): 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). 136 And an offender's conduct will be classified as reckless if he or she is put on notice, in the sense that he or she believes or suspects, that an act or omission may be unlawful but nevertheless proceeds to engage in it without making further enquiries (Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126] and Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSLEC 150 at [141]). 1. In relation to negligence, in Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 at [28]-[31], Preston J stated that a prosecutor must establish that the departure from the appropriate standard of care was sufficiently gross to warrant criminal punishment. This is to be assessed having regard to the particular conduct of the offender and the circumstances of the case. 2. In Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [41] I stated, "[t]hese circumstances arising from the actions, or more accurately, lack of actions of the Defendant's employees do not suggest intentional, negligent (inadvertence to a risk of harm that was foreseeable to a reasonable person in the position of the defendant) or reckless (advertent; foresight of a possible consequence of given behaviour)." 3. The Prosecutor contended that Mr Gray acting on behalf of the Defendant was put on notice, in the sense that he believed or suspected, that constructing the haul road in a location other than that which had been approved may be unlawful but nevertheless proceeded to engage in it without making further enquiries acted recklessly. This can be inferred from the following aspects of Mr Gray's statement: 1. he knew that the haul road proposed did not conform with the route shown in the Environmental Assessment ([7] of his statement); 2. he does not suggest that he thought the proposed location of the haul road was nevertheless "generally in accordance with the Environmental Assessment"; 3. he knew where site CH-OS6 was located and knew that it needed to be avoided by the haul road ([9] of his statement); 4. he knew that the Environmental Assessment had identified the more southern location for the haul road for the express purpose of avoiding site CH-OS6 ([12](a) of his statement); 5. he knew that there would be a limited small loss of vegetation associated with the construction of the haul road and expressly turned his mind to the fact that the approval required biodiversity offsets to be given by the Defendant ([12](b) of his statement); 6. no steps had been taken to protect CH-OS6. Mr Gray may not even have made direct reference to it in his conversation with Mr Hillier ([9] of his statement). 1. The Prosecutor submitted that from the above Mr Gray was acutely aware of the requirements of the approval and believed or suspected that constructing the haul road in the proposed location may be unlawful. He gave express consideration to the possibility and, for reasons summarised at [12] of his statement, concluded that it was appropriate to proceed. It is not suggested that he made any enquiries of anyone; at the very least such enquiries would have revealed that site CH-OS6 required protection of the type contemplated by the ACHMP. 2. Alternatively the matters referred to at par 38 above would also have put Mr Gray on notice of the obvious risk that constructing the haul road in a location other than that approved would represent a failure to comply with the approval. It can be inferred from the above that he apprehended and considered this risk and proceeded in any event which amounts to negligence. As stated in the SOAF at [12] Mr Gray also knew that the proposed unapproved location for the haul road was in proximity to the site CH-OS6 and did not take any action to protect that site such as by complying with the ACHMP. 3. The Defendant submitted that the offence should not be characterised as having been committed negligently or recklessly, relying on Boggabri. The Defendant contended that the offence was a result of a systemic failure to have appropriate systems in place to check and monitor Big Rim's compliance with the project approval, relying on findings to similar effect in Director-General Department of Planning and Infrastructure v Integra Coal Operations Pty Ltd [2012] NSWLEC 255; (2012) 192 LGERA 281 and Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246. 4. Each case must be considered on its own facts. There was little detail in Boggabri about the circumstances giving rise to the breach so that no finding could appropriately be made about the defendant's state of mind. The SOAF in this case together with Mr Gray's statement does provide evidence of how the offence occurred. Integra is distinguishable from the present case. There the defendant retained a consultant who gave advice that led to the defendant following the correct procedures under the Mining Act 1992 (NSW) to modify the approval but overlooked the need to comply with the EPA Act. In this case the Defendant's employee facilitated the change in the haul road location by Big Rim by effectively "signing off" on a different route. In Hunter Quarries the offence was committed due to a failure to monitor production and transportation records, which was found to be careless but not deliberate. It was an aggravating factor that the defendant had no monitoring system in place, which meant there was a real risk that a breach of the relevant condition would be committed. The absence of oversight in Hunter Quarries leading to the offence distinguishes it from the present case where as stated above the Defendant's employee "signed off" on the different route. 5. I do not accept that the offence was due solely to a systemic failure to check and monitor Big Rim's compliance with the EA. That clearly played a role. The Defendant through its Environment and Community Manager was aware of and facilitated the construction of the road in a different location to that which was approved in the EA. Mr Gray walked an amended proposed route of the haul road with the Open Cut Supervisor for Big Rim and directed Mr Hillier where it was to go. The Defendant through its then employee Mr Gray had full knowledge of the planned construction of the road in a location that was not in accordance with the conditions of approval. That Mr Gray considered that the proposed location "was appropriate" for the reasons given in his statement suggests he ignored an obvious risk. In his statement he considered the route he approved would avoid site CH-OS6. Negligence to the criminal standard is established. Recklessness is not proved beyond reasonable doubt as I cannot infer from his statement that Mr Gray turned his mind to the proposed location of the road and took the risk that this relocation would result in a breach of the conditions of approval. 6. Mr Gray was aware of the requirement to preserve site CH-OS6 as identified at [8] and [12] of his statement. I find that a person in his position of Environment and Community Manager should have been well aware of the need to comply with the conditions of approval, confirming my finding that negligence is established. 7. That the offence was committed negligently increases its objective seriousness. Reasons for committing the offence 1. As to the Defendant's reasons for committing the offence, the Prosecutor accepted that there is no evidence to show that the road was constructed in the unapproved location to make a profit, save incurring an expense, or to avoid the costs of obtaining and implementing a statutory permission, which would have increased the seriousness of the offence per Boggabri at [33]. The offence was committed to facilitate the operations of a commercial venture. Mr Gray stated at [6] and [12] of his statement that he was aware that Big Rim wanted to construct the haul road as the continuity of mining operations depended on its completion and stated at [7] and [12] that Big Rim did not consider the approved route was optimal because it was a steeper grade. Conclusion on objective seriousness 1. The offence is in the low range of moderate objective seriousness. Although the parties agreed that the ecological damage was not significant, the offence resulted in the clearing of a small area of a threatened ecological community that would not have been cleared if the road had been built in its approved location. The harm from a cultural and social perspective to the site CH-OS6 was considerable. That the offence was committed negligently makes it more serious. As the Court has held many times, upholding the integrity of the statutory scheme is vitally important. Subjective factors 1. Section 21A(3) of the CSP Act identifies some of the relevant mitigating factors as follows: (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22), … (m) assistance by the offender to law enforcement authorities (as provided by section 23). Absence of substantial harm 1. The Defendant submitted that the harm caused by the offence in relation to Aboriginal cultural heritage and native vegetation clearance was "not substantial" within the meaning of s 21A(3)(a) of the CSP Act, to be taken into account by the Court as a mitigating factor. This submission was made in spite of the parties' agreement that the cultural consequence of the harm was considerable. For reasons I have already given I consider the failure to comply with the statutory scheme is informed by the two areas of environmental harm. I have found that the environmental harm was low to moderate. The harm is not so insubstantial that the mitigating factor in s 21A(3)(a) of the CSP Act is applicable in this case. Prior record 1. The Defendant has no prior convictions for offences under the EPA Act. On 16 March 2016 the Defendant was issued with a penalty notice for a breach of s 125(1) of the EPA Act for stockpiling burden out of pit on 31 October 2014 contrary to a condition of the project approval. Whilst this penalty notice is not a conviction, and does not constitute a "prior record", I consider that it is relevant, though in a minor respect, to my assessment of the character of the Defendant. Good character of the Defendant 1. In his affidavit Mr Cairney outlined the ways in which the Defendant was involved in and supported the local community prior to the closure of its operations at the Colliery (see above at par 11). I accept that the Defendant made substantial contributions to local community throughout the period of its operation. I do not however accept the Defendant's work to rehabilitate the Colliery since its closure as weighing in favour of a conclusion that it is of good corporate character. The rehabilitation of the mine site was a condition of the project approval. 2. Although it does not weigh heavily on my consideration of the relevant matters, the issuance of the penalty notice as recently as March 2016 for a breach of a condition of approval indicates that the Defendant has not at all times observed the conditions of approval outside the circumstances of the present offence. In other words, the present offence cannot be described as an aberration. Whilst the penalty notice is not an aggravating factor I consider that it detracts slightly from the Defendant's otherwise good character, as it was issued recently and was also for a breach of a condition of approval. Likelihood of reoffending 1. The Defendant no longer operates at the Colliery however its parent company Centennial runs or is the parent company of operators that run other coal mines in New South Wales. In his affidavit summarised above at par 12 Mr Cairney outlined the measures put in place since the period of the offence to improve the environmental management and compliance procedures at Centennial. These measures are extensive and will greatly assist the Defendant's parent company in ensuring that further similar breaches of conditions of approval do not occur. Remorse and contrition 1. The Prosecutor accepted that the Defendant has expressed contrition for the offence. In his affidavit outlined above at par 9 Mr Cairney expressed remorse for the harm caused on behalf of the Defendant and its parent company. He also listed several ways the Defendant showed its remorse in actions, such as by Mr Cairney writing letters to the registered Aboriginal stakeholders and by the media statement issued on 22 April 2016. I accept that the Defendant has shown remorse and contrition. Plea of guilty 1. Sections 21A(3)(k) and 22 of the CSP Act provide that the court may impose a lesser penalty than it would otherwise have imposed in circumstances where the Defendant has entered a plea of guilty. The guideline judgment of the Court of Criminal Appeal of New South Wales in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 sets out the appropriate discount being in the order of 10% to 25%. The Prosecutor accepted that the Defendant pleaded guilty at the first available opportunity. I consider it appropriate in the circumstances to award the Defendant the maximum discount of 25% for the utilitarian value of the early guilty plea. Assistance to authorities 1. The SOAF at [41] outlines the measures taken by the Defendant to assist the authorities, including responding to all statutory notices for information and records, facilitating the Department's inspections of the Colliery and agreeing to the SOAF. I accept that the Defendant through its parent company has assisted the Prosecutor but consider that compliance with statutory notices which are mandatory in any event is a neutral factor in this regard. Deterrence General 1. Deterrence is an important factor in sentencing for environmental offences. As held by Mahoney JA in Axer at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. … The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure pollution does not occur. 1. A sentence should operate as a powerful factor in preventing the commission of similar offences by those who might otherwise be tempted by the prospect that only light punishment will be imposed per Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [228]. 2. General deterrence is particularly relevant in these circumstances. It is of upmost importance that the Court upholds the integrity of the planning system in this state. Persons holding development consent cannot operate under the impression that if they were to breach the conditions of consent, the penalty would not be substantial. Specific 1. As I stated in Ravensworth at [48]-[49], 48 Specific deterrence is a purpose of sentencing under s 3A(b) of the CSP Act and has been considered relevant where a defendant continues in the same area of operation in which an incident has occurred. In taking specific deterrence into account in Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 (Moolarben (No 2)) Craig J cited at [113] the following passage in Axer at 359 per Mahoney JA: The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure that pollution does not occur. Experience has shown that it is not enough merely to take care: accidents will happen. The legislation envisages that in many cases care must be supplemented by positive precautions; business must be arranged and precautions taken so as to ensure that pollution will not occur. 49 Specific deterrence is appropriate for corporate defendants to catalyse rehabilitation so that the company takes the required steps to prevent repetition (See BJ Preston, "Principled Sentencing for Environmental Offences", a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16 - 20 October 2006 at p 5). 1. Specific deterrence is also relevant in the circumstances. Although the Defendant no longer operates, its parent company Centennial runs many other mines either directly or through subsidiaries. As the Prosecutor submitted, the penalty I impose must serve to reinforce to the Defendant its overriding responsibility to conduct its business consistently with its environmental and planning approvals. Consistency in sentencing 1. The principle of even-handedness requires that the Court consider if there is any general sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court, mindful of the different circumstances leading to penalty in other cases. Caution must be exercised in considering other cases because of the inevitable disparity between subjective and objective circumstances applicable to those cases, compared to the same circumstances found to exist in this case. 2. The parties identified the following cases involving offences committed by mining companies under s 125(1) of the EPA Act: 1. In Boggabri the defendant was fined $82,500 for an offence against s 25 of the EPA Act for a breach of s 76A(1) by stockpiling interburden material on land outside the approved project boundary. There was no evidence before the court of environmental harm. A lack of evidence also meant that the court was unable to find that the defendant committed the offence intentionally, negligently or recklessly. The court found that the offence was of low objective seriousness, there were severable applicable mitigating circumstances, and the early guilty plea warranted discounting the penalty by 25% from $110,000 to $82,500. 2. In Integra the defendant was fined $84,000 for an offence against s 125(1) of the EPA Act for a breach of s 75D of the Act. The defendant breached a condition of the project approval by having out of pit waste rock emplacement at a height of 37 m above ground as opposed to the 27 m that was permitted. The defendant extended the height due to operational needs and followed the correct approval processes under the Mining Act but not under the EPA Act. After becoming aware of the breach of the EPA Act the defendant lodged a modification application under that Act which was later approved. The court found that the offence was not deliberate and that the objective seriousness was low to medium. 3. In Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93 the defendant was fined $70,000 (discounted from $100,000) for an offence against s 125(1) of the EPA Act for a breach of s 75D. The breach involved the clearing of 4.1ha of vegetation without consent, including an area of endangered ecological community. The harm was found to be minimal with short to medium term effect. The offence was of low to medium objective gravity and the defendant was aware for at least part of the period of the offence that the clearing was unlawful, requiring consent under the EPA Act not only the Mining Act. 4. In Hunter Quarries the defendant was fined $70,000 for a breach of s 125(1) of the EPA Act for producing and transporting more material than permitted under the development consent. The offence was not committed deliberately but due to a failure to monitor production and transportation records. No environmental harm was caused. The objective seriousness was low to medium. 5. In Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271 the defendant was fined $200,000 for a breach of s 125(1) of the EPA Act by producing approximately 80% more coal than was permitted under the consent. There was no actual environmental harm, however the breach was intentional and contributed significantly to the defendant's revenue. 1. I consider the objective seriousness of this matter is greater than in Boggabri, Integra and Moolarben. Moiety 1. The Prosecutor seeks a moiety on any fine I impose, pursuant to s 122 of the Fines Act 1996 (NSW). 122 Payment of share of fine to prosecutor (1) This section applies where: (a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and (b) the prosecutor is not a police officer. (2) The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor. (3) For the purposes of this section, fine does not include an amount of the kind referred to in section 4 (1) (e) or (f). 1. "Fine" is defined in s 4 as follows: 4 Meaning of "fine" (1) For the purposes of this Act, a fine is: (a) any monetary penalty imposed by a court for an offence (including a fine to which Part 7 of the Service and Execution of Process Act 1992 of the Commonwealth applies, subject to that Part), or … (c) any court fees or charges payable by a person under an order made by a court in proceedings for an offence, or … (d1) any court costs levy payable under section 211A of the Criminal Procedure Act 1986 in proceedings for an offence, or … (f) any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer, or … 1. As stated by Pearlman J in Hawkesbury City Council v Mushroom Composters Pty Ltd (No 2) (1996) 89 LGERA 132 a moiety provides an incentive to the prosecutor to prosecute in appropriate cases. An order requiring that 50% of the penalty be paid to the Prosecutor will be made. Prosecutor's costs 1. The Defendant has agreed to pay the Prosecutor's costs in the sum of $55,000. Finding on penalty 1. When sentencing the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a "value judgment as to what is the appropriate sentence given all the factors of the case", per Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [26] unanimously following Markarian at [51] per McHugh J. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant, see 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 472-473, 490-491. The sentence should not exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances", per Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354 and Veen v The Queen (No 2) at 472, 485-486, 490-491, 496. 2. I consider that the appropriate penalty is $250,000 which I will discount by 30% to $175,000 in light of the early guilty plea and other mitigating factors. 3. The Court makes the following orders and requests that the Defendant make all the payments specified to the Land and Environment Court Registry. Under the Fines Act s 7 payment is required within 28 days. Orders 1. The Court orders: 1. The Defendant is convicted of the offence as charged. 2. The Defendant is fined in the sum of $175,000. 3. Pursuant to the Criminal Procedure Act 1986 (NSW) s 257B, the Defendant is to pay the Prosecutor's costs of the proceedings in the sum of $55,000. 4. Pursuant to the Fines Act 1992 (NSW) s 122(2), one half of the fine imposed by order 2 is to be paid to the Prosecutor. 5. The exhibits are to be returned. ********** 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: 19 August 2016