Secretary, Department of Planning and Environment v Shoalhaven Starches Pty Ltd [2018] NSWLEC 23

Land and Environment Court New South Wales

Medium Neutral Citation: Secretary, Department of Planning and Environment v Shoalhaven Starches Pty Ltd [2018] NSWLEC 23 Hearing dates: 7 February 2018 Date of orders: 02 March 2018 Decision date: 02 March 2018 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [175] to [177] Catchwords: ENVIRONMENT AND PLANNING - prosecutions for failure to disclose political donations - disclosure required when making applications for modifications to approved development - five charges - early guilty pleas - for four charges, failure to disclose multiple donations - disclosure made of corporate donations but not of reportable donations made by a director SENTENCING - characterisation of offences - failures due to reckless indifference or negligence of the Defendant's company secretary to be regarded as aggravating factor - Defendant's prior environmental convictions not a factor of aggravation - very limited subjective factors in Defendant's favour - approach to consideration of offences collectively - offences with multiple failures to declare being toward the upper end of the range - offences with single failure to declare being in the middle of the range - accumulation and totality where multiple offences - fines imposed SENTENCING - publication orders - availability to be ordered when legislation providing for them came into force after commission of one of the offences - legislative prohibition on retrospective application of increased penalty - publication order made with respect to four of the five charges CRIMINAL PROCEDURE - Prosecutor's application for moiety of fines imposed - appropriate to make an order in present circumstances Legislation Cited: Corporations Act 2001 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986, s 257B Election Funding Amendment (Political Donations and Expenditure) Bill 2008 Election Funding, Expenditure and Disclosures Act 1981 Environmental Planning and Assessment Act 1979, ss 125(1), 147 Evidence Act 1995, ss 59, 66 and 69 Fines Act 1996 Local Government and Planning Legislation Amendment (Political Donations) Bill 2008 Protection of the Environment Operations Act 1995 Cases Cited: Anderson v R (1993) 177 CLR 520 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Director-General, Department of Planning and Infrastructure v Aston Coal 2 Pty Ltd (2013) 199 LGERA 176; [2013] NSWLEC 188 Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158 EPA v Barnes [2006] NSWCCA 246 Markarian v The Queen 228 CLR 357; [2005] HCA 25 Pearce v The Queen (1998) 194 CLR 610 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Olbrich 199 CLR 270; [1999] HCA 54 R v Thompson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309 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 Secretary, Department of Planning and Environment v T W Perram & Partners Pty Limited [2017] NSWLEC 170 The Queen v Kilic [2016] HCA 48 Category: Principal judgment Parties: Secretary, Department of Planning and Environment (Prosecutor) Shoalhaven Starches Pty Ltd (Defendant) Representation: Counsel: Ms I King, barrister (Prosecutor) Mr M Astill, barrister (Defendant)