Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 Hearing dates: 13 and 14 March 2017; further written material 24 March 2017 Date of orders: 31 May 2017 Decision date: 31 May 2017 Jurisdiction: Class 5 Before: Moore J Decision: Orders at [205] Catchwords: PROSECUTION – pollution of waters – plea of guilty – agreed facts demonstrate plea appropriate – discharge into watercourse – discharge for short period – discharged wastewater highly polluted – whether discharge caused death of five cattle – discharge did cause death of cattle – extent of harm caused by discharge substantial – whether aggravating factor – held to be aggravating factor – assessment of seriousness of the offending conduct – offending conduct significantly above the midpoint of the range of seriousness for such offences PROSECUTION – breach of Environment Protection Licence condition– plea of guilty – agreed facts demonstrate plea appropriate – failure of valve on wastewater transfer pipe – failure caused discharge of the wastewater in the first prosecution – assessment of seriousness of the offending conduct – offending conduct somewhat below the midrange of seriousness of offences of this type PENALTIES – discount for early plea – starting penalty of $650,000 for water pollution offence and of $100,000 for licence condition breach offence – total discount of 33% appropriate (including discount for the early guilty pleas) PENALTIES – appropriate to have regard to aggregation and totality when considering both offences – application of appropriate principle to derive penalties results in penalty of $400,000 for the water pollution offence and $60,000 for the licence breach offence PENALTIES – publication order – utility of publication order for general deterrence – no agreement between parties as to terms of notice for publication – terms of notice set having regard to but not adopting competing versions – deterrent effect of requiring publication in national media – order made requiring notices to be produced in one national, one regional and one local paper – order made specifying size and manner of publication – order made requiring notices to be filed with the Court as well as provided to the Prosecutor Legislation Cited: Protection of the Environment Operations Act 1995, ss 3, 3A, 64(1), 120(1), 123, 241, 250 Crimes (Sentencing Procedure) Act 1999, ss 21A, 22 Cases Cited: Barca v R (1975) 133 CLR 82; [1975] HCA 42 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Wambo Coal Pty Limited (ACN: 000 668 057) [2016] NSWLEC 125 Environment Protection Authority v Waste Recycling and Processing Company 148 LGERA 299; [2006] NSWLEC 419 EPA v Barnes [2006] NSWCCA 246 Markarian v The Queen 228 CLR 357; [2005] HCA 25 R v Thompson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309 Plath v Rawson 170 LGERA 253; [2009] NSWLEC 178 Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Principal judgment Parties: Environment Protection Authority (Prosecutor) Dyno Nobel Asia Pacific Pty Ltd (Defendant) Representation: Counsel: Mr S Rushton SC (Prosecutor) Mr T Howard SC (Defendant)