Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority [2017] NSWCCA 302

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority [2017] NSWCCA 302 Hearing dates: 28 November 2017 Decision date: 08 December 2017 Before: Simpson JA at [1]; R A Hulme J at [64]; Wilson J at [65] Decision: (1) Appeal allowed in part;

(2) Order 2 of the orders made by the Land and Environment Court on 31 May 2017 set aside;

(3) In lieu thereof, the appellant is fined $300,000;

(4) In other respects, the orders of the Land and Environment Court are confirmed, save that the notices to be published by the appellant are adjusted to incorporate the variation to the fine imposed. Catchwords: ENVIRONMENT AND PLANNING – offences – waters pollution – breach of licence condition – discharge of contaminated water into dam on adjoining rural property – death of five cows – whether deaths caused by pollution of waters – whether cause of deaths proved beyond reasonable doubt – whether deaths substantial harm to environment – whether deaths aggravating factor – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g) – sentencing – appeal against sentence – whether primary judge erred in assessment of objective seriousness and harm caused – whether primary judge erred in consideration of good character and mitigation – whether sentence manifestly excessive

SENTENCING – relevant factors on sentence – objective seriousness – waters pollution offence – where waters inadvertently polluted and caused deaths of cattle

SENTENCING – appeal against sentence – severity – sentence manifestly excessive Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Criminal Appeal Act 1912 (NSW), ss 5AA, 5AB Protection of the Environment Operations Act 1997 (NSW), ss 64, 120(1), 123, 241 Cases Cited: Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146 Environment Protection Authority v Orica Australia Pty Ltd (the Evaporator Incident) [2014] NSWLEC 104 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 R v KB; R v JL; R v RJB [2011] NSWCCA 190 R v Nakash [2017] NSWCCA 196 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Dyno Nobel Asia Pacific Pty Ltd (Applicant) Environment Protection Authority (Respondent) Representation: Counsel: J Glissan QC (Appellant) E C Muston SC/P English (Respondent)