Land and Environment Court New South Wales Medium Neutral Citation: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 Hearing dates: 11 September 2018; written submissions 19 September 2018 Date of orders: 08 April 2019 Decision date: 08 April 2019 Jurisdiction: Class 5 Before: Sheahan J Decision: See paragraph [167] Catchwords: ENVIRONMENT AND PLANNING: Prosecutions for failing to disclose political donations – pleas of guilty entered – sentencing principles – totality in sentencing – moieties to the prosecutor – publication orders – principles to apply – costs. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Election Funding Amendment (Political Donations and Expenditure) Bill 2008 Election Funding and Disclosures Act 1981 Election Funding, Expenditure and Disclosures Act 1981 Environmental Planning and Assessment Act 1979 Fines Act 1996 Local Government and Planning Legislation Amendment (Political Donations) Bill 2008 Protection of the Environment Operations Act 1997 Cases Cited: AB v The Queen (1999) 198 CLR 111 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 Callaghan v R (1952) 87 CLR 115; [1952] HCA 55 Cameron v the Queen [2002] HCA 6; (2002) 209 CLR 339 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Chief Executive, Office of Environment and Heritage v Rummery (2012) 192 LGERA 314; [2012] NSWLEC 271 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 Director-General, Department of Planning and Infrastructure v Aston Coal 2 Pty Ltd [2013] NSWLEC 188 Elias v the Queen; Issa v the Queen [2013] HCA 31; 248 CLR 483 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80 Environment Protection Authority v Ditchfield Contracting Pty Limited [2018] NSWLEC 90 Environment Protection Authority v Incitec Limited (2003) 131 LGERA 176; [2003] NSWLEC 381 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Graham v The Queen [2009] NSWCCA 212 Imbornone v R [2017] NSWCCA 144 Markarian v The Queen (2005) 228 CLR 357 Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Bourchas [2002] NSWCCA 373 R v Gallagher (1991) 23 NSWLR 220 R v Holder; R v Johnston [1983] 3 NSWLR 245 R v McGourty [2002] NSWCCA 335 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 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 Shoalhaven Starches Pty Ltd [2018] NSWLEC 23 Secretary, Department of Planning and Environment v T W Perram & Partners Pty Ltd [2017] NSWLEC 170 SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 Wong v the Queen; Leung v the Queen [2001] HCA 64; 207 CLR 584 Category: Principal judgment Parties: Secretary, Department of Planning and Environment (Prosecutor) SingTel Optus Pty Ltd (Defendant) Representation: Counsel: Ms I J King, barrister (Prosecutor) Mr R Lancaster, SC and Ms C Trahanas, barrister (Defendant) Solicitors: Department of Planning and Environment (Prosecutor) Clayton Utz (Defendant) File Number(s): 2017/2192732017/2192742017/2192752017/219276 Judgment Introduction 1. The Defendant, SingTel Optus Pty Ltd ("Optus"), has pleaded guilty to four charges of failing to disclose "reportable political donations" in the course of the submission to the Minister for Planning, on its behalf, of development applications, and/or applications to modify development consents ("planning applications"). 2. The offences occurred between April 2015 and September 2016 (mostly between February and September 2016). 3. The four charges, laid on 19 July 2017, each concern a total of six undisclosed political donations ("the donations"), which were payments made for tickets to attend various dinner type functions with members of political parties. The total amount donated was $5,400. 4. The Court accepts that in any one year Optus and its associates make a huge number of planning applications across the state, but those relevant to the present charges all related to the installation of telecommunications infrastructure for the Defendant's mobile network, Optus Mobile Pty Ltd ("Optus Mobile"), in the Snowy Mountains region. 5. The offences charged arise under s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA Act"), from alleged failures to comply with the obligation imposed in s 147(3) of that Act. (See [45] and [49] below.) 6. Related prosecutions of an associated company, Visionstream Australia Pty Ltd ("Visionstream" – see [14], and [65] to [67] below) were discontinued, as part of a plea arrangement. 7. Following the Defendant's pleas of guilty, two entered on 8 September 2017, and two on 25 May 2018, the four proceedings came before the Court, together, for a sentencing hearing on 11 September 2018. 8. The maximum penalty for a corporation, for each offence, is a fine of $44,000. 9. The maximum penalty for an offence reflects the public expression of Parliament's view of the seriousness of the offence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. However, the High Court said, in Elias v the Queen; Issa v the Queen [2013] HCA 31; 248 CLR 483, at [27]: It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted. 1. Ms Ingrid King of counsel represented the Prosecutor, and Richard Lancaster SC and Ms Christina Trahanas of counsel appeared for Optus. Evidence 1. The parties agreed upon, and put before the Court, a very comprehensive Agreed Bundle of Documents ("ABoD", Exhibit P1), all of which proved helpful to the Court, and a Statement of Agreed Facts ("SoAF", Exhibit P2), on which I draw heavily below. 2. Affidavits from Kanagaratnam Lambotharan (Head, Mobile Network Deployment for the Defendant), and John Frederick Howard Collins (Solicitor for the Defendant), were also read and relied upon by the Defendant. 3. Lambotharan (also known as "Lambo Kanagaratnam" – see his annexures LK-2 to 4) apologised "to the Court and the community for the breaches of the law by Optus in these matters". He swore he would "continue to do all I can to ensure that Optus and its contractors are aware of, and comply with, all of their legal obligations ... so far as disclosure of reportable political donations is concerned" (par 3). He also apologised (par 26) on behalf of a senior staff member involved in two relevant applications. 4. He also deposed at length to how Optus utilises various suppliers (e.g. Visionstream) in "constantly reviewing and upgrading its mobile network physical infrastructure to extend its mobile coverage and to upgrade existing network capacity" (par 10, and see pars 11 to 23). 5. He went on to deal with the relevant planning applications, the Defendant's response to the Department's investigation and resulting proceedings, and subsequent policy development (e.g. annexures LK-6 and LK-7), and training initiatives taken, by Optus. 6. Collins deposed to providing "detailed advice" on the relevant legislation and "detailed training", and supporting documentary materials, to Optus executives and contractor representatives concerning the reporting of donations. 7. Although the documents in Exhibit P1 had been "agreed", the Prosecutor unsuccessfully took a series of objections to the content at tab 34, namely a lengthy letter dated 24 July 2018, addressed to the Court, and signed by Andrew Sheridan, the Defendant's Vice President Regulatory and Public Affairs (and stated author of Lambotharan's annexures LK-6 and 7). 8. That letter details the remedial steps taken by Optus to ensure non-disclosure does not occur again, and Sheridan expresses the company's "sincere" apologies for the present offences, which he described as "unintentional" and "isolated" breaches. 9. The Prosecutor's objections were based on her inability to directly test Sheridan's assertions. She relied upon two NSW Court of Criminal Appeal cases, R v McGourty [2002] NSWCCA 335 and R v Bourchas [2002] NSWCCA 373. 10. In response, Mr Lancaster relied upon more recent Court of Criminal Appeal authority, such as Imbornone v R [2017] NSWCCA 144, and successfully argued that the Sheridan material is admissible, and "entirely consistent" with the material to which Lambotharan deposed, but on which the Prosecutor did not require him for cross-examination. He said (Tp16, LL1-7): ... Mr Sheridan's letter in its entirety should be deserving of considerable weight because there is other evidence before the Court. Nothing that he says is inconsistent with the sworn evidence brought forward on behalf of Optus. My friend could have asked Mr Lambotharan to be here for cross-examination about any of the matters covered in either Mr Lambotharan's affidavit or Mr Sheridan's letter or any other matter, but he wasn't required for cross-examination. 1. I will return to the material put forward by both executives ([128]), bearing in mind Ms King's submission (Tp22, LL41-44) that "Sheridan's letter should be regarded as a self-serving untested statement and should be given extremely limited weight especially in the portions where objection has been taken". 2. Tab 36 of Exhibit P1 contains a 2012 partial company organisation chart for the Defendant, upon which the positions held by both Sheridan and Lambotharan are not shown. As Mr Lancaster, senior counsel for Optus, observed (Tp28, L24), "they're off the chart because they are more senior ..." than those positions which were included, and I accept that submission. Relief Sought 1. Each of the four summonses specifically envisages the imposition of a fine, plus an order for costs, and also an order for a moiety of 50% of any fine to be paid to the Prosecutor. 2. Just prior to the sentencing hearing, the parties agreed that the Defendant would "accept an order that it pay" the Prosecutor's costs, in the agreed amount of $40,000 (Tp36, LL46-48). 3. The question of the moiety was not disputed at all by the Defendant. Payment of a moiety is provided for under s 122(2) of the Fines Act 1996, which provides: 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. 1. The award of a moiety to the Prosecutor is discretionary. 2. Ms King (subs par 35) invoked an analysis of the measure by Moore J in his judgment in Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited ("AGL") [2017] NSWLEC 2, at [134]-[157]. His Honour applied those principles again in Secretary, Department of Planning and Environment v Shoalhaven Starches Pty Ltd ("Shoalhaven Starches") [2018] NSWLEC 23. 3. I respectfully adopt His Honour's approach, and will accede to the Prosecutor's request for a moiety in each case. 4. However, at the outset of the sentencing proceedings, Ms King notified the Court that she would also seek a publication order, in addition to the imposition of any monetary penalty, and the agreed costs order. 5. Preston J said of publication orders, in Environment Protection Authority v Waste Recycling and Processing Corporation ("Waste Recycling") (2006) 148 LGERA 299; [2006] NSWLEC 419, at [242]: Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma: ... 1. In Environment Protection Authority v Ditchfield Contracting Pty Limited [2018] NSWLEC 90, His Honour said (at [76]): The main purpose of publicising the detection, prosecution and punishment of Ditchfield for the offence is to improve the effectiveness of general deterrence. People and businesses need to be aware that the offence of pollution of waters committed by Ditchfield is a crime, that offenders will be prosecuted and that the courts will impose significant penalties on offenders. By such awareness, people and businesses will be deterred from committing the offence. However, in order to achieve this purpose of deterrence, notice must be published in publications and other media accessed by the people and businesses who are to be deterred. The offence of pollution of waters is committed widely and not only in a particular industry. Publication of the notice therefore needs to be widespread. Publication in both a State-wide and a regional newspaper, as well as a trade publication, is appropriate. 1. As Moore J observed in Shoalhaven Starches (at [171]): The publication notice will not simply be a matter of "name and shame" for the Company but will also afford a warning to others as an element of general deterrence, particularly if it is sufficiently likely to be read amongst the wider Australian business community 1. As His Honour also said in AGL (at [132]), "publication orders serve a punitive as well as an educative function". 2. Such orders are made in addition to, and not instead of, the imposition of any penalty, and so are not to be considered in determining the quantum of any fine imposed: Environment Protection Authority v Incitec Limited (2003) 131 LGERA 176; [2003] NSWLEC 381, at [58]-[59]. 3. None of the summonses in the present case had specifically sought any publication order, but each summons included a prayer (No 5) seeking "such further or other order as the Court thinks fit". 4. Ms King noted that, in Shoalhaven Starches, the possibility of a publication order was "raised by the Court itself", despite its not being relief that was pleaded/sought in any of the summonses. 5. In any event, Ms King contended that such an order clearly came within the above-quoted Prayer 5 of each summons. However, she conceded that it can apply only in respect of offences committed after 15 July 2015, i.e. only matters 2017/219273, 219274 and 219276 – she referred (at Tpp1-2) to Moore J's decision in AGL, noting (at Tp2, LL2-5) that publication orders: "are not available in relation to offences in relation to conduct prior to the amendments to the Environmental Planning and Assessment Act which commenced on 15 July 2015 [and that in that case] ... one of the offences was committed on 8 April 2015 ..." 1. She later commented (Tp41, LL30-37): In this matter a publication notice is a matter which your Honour might regard as having utility for the community as a whole in publicising the existence of an offence of failing to disclose political donations when making development applications and when considering the appropriate punishment in the exercise of your Honour's discretion for the defendant, it would be open to your Honour to conclude that there might be perceived to be more sting in a publication notice than in necessarily the payment of a fine by a substantial telecommunications company… 1. Ms King presented the Court with a draft publication order. However, neither Ms King, nor her draft, nominated the newspapers in which publication should occur. 2. Mr Lancaster objected to the lateness of the submission seeking such an order. He said (Tp36, LL13-20): …Optus's conduct was at the low end of the range of objective seriousness that is obviously a matter that plays into the discretion whether or not to make the publication order and also into the discretion of whether or not to entertain a late application for a publication order. There is not even an application to amend the summons formally to seek it, but in my submission the circumstances of this offending is (sic) not sufficiently serious to make it appropriate for such a publication to be made in addition to the procedural objection that I've raised to it. 1. He also described the requirement of publishing a notice in the present case as a "disproportionate response" (Tp36, L41). 2. In his closing oral submissions he complained (Tp43, LL1-16): ... if the remedy was going to be sought it ought to have been pleaded and/or should have been the subject of an amendment application, neither of which has occurred. The prosecutor explicitly puts this forward as a remedy with more sting than the fine, and yet says I didn't have to put it in the summons. Your Honour the whole point of the present practice note, now recognised in the procedures of the court, is that it's procedurally unfair not to give specific reference to the prosecutor seeking an order like this. And your Honour I can say with no exaggeration it could have made a real difference to the entry of pleas of guilty. Your Honour doesn't need to find that. But your Honour would obviously recognise that if the summons contained a specific claim for an order in the nature of a publication order of these offences that would have been a matter material for Optus to take into account in considering whether and when to plead guilty. So that's just an indication of the real procedural unfairness that's involved in just dropping this on this defendant in these circumstances on the day of the sentencing hearing. 1. Despite noting Mr Lancaster's objections to a publication order, the Court provided him with an opportunity to comment on the terms of the draft composed by the Prosecutor, and his written comments, and an alternative draft notice, were submitted on 19 September 2018. The Prosecutor did not respond. 2. I have concluded that a publication order can be made in this case, and I will return in due course to its appropriateness, its terms, and where publication should occur ([162]). The Statutory Framework 1. Section 125 of the EPA Act, prior to the legislative amendments introduced on 1 March 2018, provided: 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 Secretary, 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. 1. Section 126(2A) of that Act provided: Part 8.3 of the Protection of the Environment Operations Act 1997 (Court orders in connection with offences) applies to an offence against this Act or the regulations in the same way as it applies to an offence against that Act or the regulations under that Act, but only in relation to proceedings before the Court and subject to any modifications prescribed by the regulations under this Act. 1. Section 147 outlined the obligations in respect of the Disclosure of Political Donations and Gifts. 2. Section 147(1) provided: (1) The object of this section is to require the disclosure of relevant political donations or gifts when planning applications are made to minimise any perception of undue influence by: (a) requiring public disclosure of the political donations or gifts at the time planning applications (or public submissions relating to them) are made, and (b) providing the opportunity for appropriate decisions to be made about the persons who will determine or advise on the determination of the planning applications. Political donations or gifts are not relevant to the determination of any such planning application, and the making of political donations or gifts does not provide grounds for challenging the determination of any such planning application. 1. Section 147(3) provided: (3) A person: (a) who makes a relevant planning application to the Minister or the Secretary is required to disclose all reportable political donations (if any) made within the relevant period to anyone by any person with a financial interest in the application, or (b) who makes a relevant public submission to the Minister or the Secretary in relation to the application is required to disclose all reportable political donations (if any) made within the relevant period to anyone by the person making the submission or any associate of that person. The relevant period is the period commencing 2 years before the application or submission is made and ending when the application is determined. 1. The specifics of the offence were contained in s 147(11), which provided: (11) A person is guilty of an offence under section 125 in connection with the obligations under this section only if the person fails to make a disclosure of a political donation or gift in accordance with this section that the person knows, or ought reasonably to know, was made and is required to be disclosed under this section. The maximum penalty for any such offence is the maximum penalty under Part 6 of the Election Funding and Disclosures Act 1981 for making a false statement in a declaration of disclosures lodged under that Part. 1. These provisions were considered by this Court in both Shoalhaven Starches and AGL, but also in Director-General, Department of Planning and Infrastructure v Aston Coal 2 Pty Ltd [2013] NSWLEC 188 ("Aston" – per Craig J), and Secretary, Department of Planning and Environment v T W Perram & Partners Pty Ltd [2017] NSWLEC 170 ("Perram" – per Pain J). 2. In AGL, Moore J detailed some history of the disclosure regime (at [1]-[7]) in these terms: 1 On 18 June 2008, the then Attorney General, the Hon. John Hatzistergos MLC, introduced into the NSW Parliament the Election Funding Amendment (Political Donations and Expenditure) Bill 2008 and its relevant cognate Bill, the Local Government and Planning Legislation Amendment (Political Donations) Bill 2008. With respect to the cognate Bill, the Attorney said, relevant to these prosecutions: The bill will require public disclosure of all donations made by persons who have a financial interest in a relevant planning application at the time the relevant planning application is lodged. A person who makes a relevant planning application to the Minister for Planning will be required to disclose all donations of $1,000 or more made in the past two years by anyone with a financial interest in the application. In that context, a relevant planning application includes a request to the Minister or the director general to initiate the making of an environmental planning instrument, and a request for development on a particular site to be made a State-significant development. Persons with a financial interest in an application include the applicant or the person on whose behalf the application is made, the owner of the site, or other persons who are associated with the applicant or owner, and are likely to make a financial gain if the relevant application is approved. Persons are taken to be associated if they carry on business together in connection with the application, or if they are related companies. 2 The Bills passed and the relevant amendment to [the EPA Act] – the insertion of s 147 – became operative from 1 October 2008. By the passage of this legislation, the New South Wales Parliament made it a requirement that, when a corporation or an individual made a development application to a consent authority, a political donation disclosure needed to be made. Failure to make a relevant disclosure as required became an offence as a consequence of ss 125(1) and 147 of [the EPA Act]. 3 [His Honour set out s 147(1)] ... 4 [His Honour set out s 147(11)] ... 5 The maximum penalties for such an offence are to be derived by reference to the Election Funding, Expenditure and Disclosures Act 1981 (the EFED Act). This arises as a consequence of the second sentence of s 147(11) ... 6 The Election Funding and Disclosures Act 1981 referred to in s 147(11) is now known as the EFED Act. 7 The maximum penalties set by s 96H(2) of the EFED Act, applicable as at the date of all these offences (although subsequently increased in 2014 – a matter of irrelevance in all these proceedings), are 200 penalty units ($22,000) or imprisonment for 12 months, or both. 1. In terms of legislative purpose, His Honour said (at [91] and [94]): 91 ... the disclosure provisions giving rise to these charges were enacted ... as a transparency process designed to enhance and protect public confidence in the integrity of the development approval process both for projects (or modifications to approved projects) dealt with at a state level with protective, integrity-based reasons for the provisions also applying at a local council level. Other disclosure requirements, whilst undoubtedly introduced for integrity reasons, are in an entirely different statutory framework and do not bear on how matters of disclosure should be approached under these statutory provisions. ... 94 ... the purpose of the legislative amendments has an ethical foundation designed to protect and enhance public views of the integrity of the planning system in circumstances where there has been an erosion of public confidence over time. Although approval decisions were made under delegation, they were nonetheless made in the name of the Minister, self-evidently the holder of a political office – an office in government derived from membership of a political party (it matters not, which party or what government) where the beneficiaries of the undisclosed donations are the parties participating in that political system. 1. In Perram, Pain J added further context (at [36] and [39]): 36 The legislative objective is expressed in s 147(1) of the EPA Act. While not submitting that there was any corruption or undue influence in this particular instance, the Prosecutor submitted that the legislative regime is constructed in such a way that it is intended that the public would have confidence that approvals of development applications are considered in a fashion that is not influenced by donations. The failure to declare such donations strikes at the heart of public confidence in the institutions governing development in New South Wales. The Prosecutor submitted that in this context, the failure to declare the political donations must be viewed as being a serious breach of the reporting regime. ... 39 The Prosecutor submitted ... that while the objects of the EPA Act are general in nature, they still indicate Parliament's intention that applications for development of property should be dealt with by way of transparent and accountable processes. In the context of the failure to declare reportable donations, it is submitted that the objects in s 4A of the EFED Act should also be taken into account. In particular, s 4A(a) ("to establish a fair and transparent election funding, expenditure and disclosure scheme") and s 4A(c) ("to help prevent corruption and undue influence in the government of the State or in local government") are submitted to be of relevance. 1. In October 2008, the NSW Department of Planning published a detailed guideline on disclosure of political donations and gifts (Exhibit P1, tab 35). 2. As the Prosecutor submitted (par 16), the legislative regime for disclosure of political donations serves the need for public confidence in the approval process for development applications; such applications need to be determined in the absence of (improper) influence by an applicant. 3. I also accept Ms King's further submission (par 17) that "the failure to declare donations damages public confidence in the institutions governing development in New South Wales, particularly where the relevant applications were approved before the relevant political donations came to light". 4. I accept that there is a need for general deterrence in sentencing for offences against the reporting regime. 5. At the time the offences in Aston, AGL, and Perram were committed, the maximum penalty was a fine of $22,000 and/or 12 months imprisonment. 6. Craig J said in Aston (at [40]): The penalty imposed in a given case must be commensurate with that proportion of the maximum penalty provided for the offence that is reflective of, among other matters, the objective seriousness of the offence as charged. In identifying that objective seriousness, I do not overlook the fact that while a much higher maximum fine is available under s 126(1) than that provided for by s 147(11), the maximum penalty for the present offences includes both the imposition of a fine and the imposition of a custodial sentence. The imposition of such a sentence is not available under s 126(1). This suggests that the seriousness with which the Parliament viewed the failure to comply with s 147 of the EPA Act should not be viewed so narrowly as if a fine only of $22,000 was the measure against which that seriousness should be judged. 1. Moore J noted in AGL (at [101]): ... although the maximum penalty is a comparatively modest one for each offence ($22,000), as Craig J observed, the availability of a term of imprisonment as a penalty for an offending individual can be taken as an indication by the legislature of the seriousness with which these offences are to be regarded. In addition, as can be seen from Appendix 1, there is, for the most part, a pattern of multiple failures of the internal AGL systems causing some donations, including ones for not insignificant sums, failing to be disclosed for multiple projects. 1. In Shoalhaven Starches, Moore J noted, in respect of the increase in the maximum penalty (at [16], and [145]-[146]): 16 The maximum penalties set by s 96H(2) of the EFED Act were doubled in 2014 - a factor irrelevant in my AGL decision but here applicable to these five offences. The applicable maximum penalties applying now are 400 penalty units ($44,000) or imprisonment for 24 months, or both. Given that the Company cannot be imprisoned, only the maximum monetary penalty applies for consideration with respect to each offence. ... 145 …That the legislature has chosen to double the applicable penalties after only a period of some six years after the creation of the offence can be regarded as a reflection of the viewing by the legislature of how the public would regard the seriousness of such offending conduct. 146 Such a significant comparative increase in the applicable maximum penalty in circumstances where such an increase cannot merely be regarded as an inflationary adjustment (particularly in light of the doubling of the potential jail sentence for individual offenders) leads to the conclusion that the legislature now regards offences of this nature as having a greater degree of seriousness than had been the position at the time of the first creation the offence. 1. For the four offences involved in the present case, the theoretical maximum fine that could be imposed would, therefore, be $176,000, subject to any appropriate sentencing discounts, and the possible application of the principle of totality. The Facts 1. The Defendant is the sole shareholder of the mobile network "Optus Mobile" (SoAF par 1). 2. Visionstream provides various services to Optus Mobile under a "Master Supply Agreement" ("MSA") dated 20 September 2013 (ABoD tab 29 and SoAF pars 2 and 3). 3. The relationship between Optus and Visionstream, including the arrangements regarding the provision of services from Visionstream to Optus, is described in the following way (SoAF pars 4 and 5 – footnotes omitted): 4. From time to time, pursuant to a Statement of Work (SOW) forming part of the Supply Agreement, Visionstream was contracted to provide services to the Defendant relating to mobile deployment activities across a number of sites in New South Wales, including site identification, site acquisition (including seeking and obtaining relevant approvals) and site construction. Specifically, the Supply Agreement may be characterized as an "outsourcing" arrangement whereby Visionstream supplied services to Optus for the design, build, connection and integration of telecommunications infrastructure for the Optus mobile network (site development process). The site development process is characterised by four phases, each of which has a different scope of work. For a particular site, these phases are: (a) Phase 1 - selection of a candidate site for the proposed telecommunications infrastructure; (b) Phase 2 - site acquisition, creating a design for the site and obtaining any relevant planning permissions/approvals; (c) Phase 3 - construction of the infrastructure/facility at the site; and (d) Phase 4 - integration and commissioning of the telecommunications equipment at the site. 5. Although the Supply Agreement made it clear that Visionstream was: (a) required to comply with all applicable laws; (b) required to satisfy all conditions and requirements of relevant authorities; (c) required to obtain all approvals relevant to the site in question; (d) to be responsible for environment and planning services and to carry out all roles, tasks, activities and responsibilities necessary for its successful delivery; (e) not an agent of Optus in performing the site development process. (f) the SOW required Visionstream to: (i) obtain all relevant approvals and submit all documentation in connection with development approvals; and (ii) ensure that DA documentation reflected best practice and was 'fit for purpose', Optus does not dispute the fact that the submission of development applications by Visionstream carried with it the obligation to disclose relevant reportable political donations made by Optus. 1. Visionstream was responsible for lodging, on behalf of Optus, two of the relevant planning applications, namely DA 7031 and MOD 7558 (SoAF pars 19 and 40, and see pars 20-26, and 41-48). 2. Another company, Kosciuszko Thredbo Pty Ltd ("KT"), was also responsible for lodging development applications, which affected the Defendant's operations in the Snowy Mountains, and to which consent was granted by a delegate of the Minister for Planning: (SoAF pars 27-28, and 49-50 re DA 6968; and 38-39 re DA 6534). DA 6534 is not itself involved in these proceedings. KT is the lessee of the Thredbo Ski Resort (from the NSW National Parks and Wildlife Service – see Lambotharan, par 23). 3. Those consents granted to development applications lodged by KT were the subject of modification applications, lodged by Visionstream and the Defendant, and which now form the basis of three of the current charges (SoAF 29-37 re MOD 7531; 40-48 re MOD 7558; and 51-59 re MOD 8047). 4. MOD 8047 is the subject of the summons in matter 2017/219273; MOD 7558 is the subject of the summons in matter 2017/219274 (although the charge erroneously refers to "MOD 7578", an error not repeated in the particulars); DA 7031 is the subject of summons in matter 2017/219275; and MOD 7531 is the subject of summons in matter 2017/219276 (SoAF par 6). 5. In chronological order, the dates of lodgement and determination of these 4 relevant planning applications are: Lodged Determined DA 7031 8/4/15 20/7/15 MOD 7531 25/2/16 16/3/16 MOD 7558* 8/3/16 20/4/16 MOD 8047 20/9/16 20/11/16 (*sometimes wrongly detailed as "MOD7578": see [70] above.) 1. Optus does not dispute that "the submission of development applications by Visionstream carried with it the obligation to disclose relevant reportable political donations made by Optus" (SoAF par 5). 2. On 24 March 2017, a notice given under s 119J of the EPA Act put to the defendant the non-disclosure of the political donations, and required Optus to provide information and records in relation to them (SoAF par 60; Defendant's subs par 9). 3. Optus responded, and, on 30 March 2017, commenced a comprehensive internal review of its development application processes, in response to which it took a number of actions (detailed in its subs at pars 49-51). 4. On 19 July 2017, the Prosecutor commenced these proceedings against the Defendant (SOAF par 6). 5. On 8 September 2017, Optus pleaded guilty to the charges concerning subject planning applications it had made, namely MOD 7531 and MOD 8047 (SoAF par 9). 6. On 21 May 2018, Optus pleaded guilty to the two charges concerning the planning applications lodged by Visionstream on its behalf, namely DA 7031 and MOD 7558 (SoAF par 10). The Donations 1. The present charges all stem from the non-disclosure of six donations, which were made variously to both the Labor and Liberal parties, by way of payment for tickets to attend breakfast, lunch and dinner functions with various politicians, in the period between 30 September 2014 and 15 April 2015 (SoAF pars 11-16): 30.9.14 Liberal $150 28.10.14 Liberal $500 14.12.14 Liberal $1,500 9.3.15 Liberal $750 17.3.15 Labor $1500 15.4.15 Liberal $1000 $5,400 1. Mr Lancaster described the relevant events (Tp10, L35) as "fairly low level political functions". 2. The payments were all declared to the NSW Electoral Commission, on 20 October 2015, but they were also "reportable" under the EPA Act disclosure regime, and were not reported (SoAF pars 17-18, but see also details in SoAF pars 19 to 59, and Prosecutor's subs par 6). Sentencing Principles 1. Part 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act") states the purposes of sentencing. 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. Determining the appropriate penalty for an offence requires an "instinctive synthesis" of the objective and subjective sentencing factors involved: Markarian v The Queen (2005) 228 CLR 357. 2. The factors to be taken into account in determining the objective seriousness of an environmental offence, in addition to the subjective mitigating factors of the defendant, were outlined by Preston ChJ in Plath v Rawson ("Plath v Rawson") (2009) 170 LGERA 253; [2009] NSWLEC 178. 3. In Plath v Rawson, Preston ChJ set out the circumstances to which the Court may have regard in determining the objective seriousness of an offence. He said (at [46]-[48]): 46 The primary consideration in sentencing is the objective gravity or seriousness of each offence. The objective gravity fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportional to the gravity of the crime considered in light of its objective circumstances. It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence: Gittany [Construction Pty Ltd] v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [108], [109] and cases therein cited. The objective circumstances of the offence and the purposes of punishment inform the lower limit of sentencing discretion, a bottom line beneath which a sentence cannot legitimately be set: SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 at [4]-[6] and Graham v The Queen [2009] NSWCCA 212 at [43], [44]. 47 In assessing the objective gravity or seriousness of the offence, the sentencing court may have regard to not only the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander, but also circumstances which are personal to the offender at the time of the offence which become objectively relevant because of their causal connection with the commission of the offence. These include the mental state of the offender and the reasons for committing the offence: see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [85]-[86]. 48 In determining the objective gravity or seriousness of each of the offences in this case, the circumstances to which the Court may have regard include: (a) the nature of the offences; (b) the maximum penalties for the offences; (c) the harm caused to the environment by commission of the offences; (d) the state of mind of the offender in committing the offences; (e) the offender's reasons for committing the offences; (f) the foreseeable risk of harm to the environment by commission of the offences; (g) the practical measures to avoid harm to the environment; and (h) the offender's control over the causes of harm to the environment. 1. His Honour also outlined the subjective mitigating factors, personal to the defendant, which can have the effect of lowering a sentence within the limits set by the objective seriousness of an offence. He stated (at [140]): Factors to be considered are: lack of prior criminality; prior good character; plea of guilty to the offences; contrition and remorse; and assistance to authorities. 1. Section 21A of the CSP Act identifies, in subsections (2) and (3), aggravating and mitigating factors or circumstances which the Court must take into account. Those possibly relevant in the present case are: (2) Aggravating factors ... (d) the offender has a record of previous convictions ... ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, ... (3) Mitigating factors ... (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, ... (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, ... (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 or Division 1A), ... (m) assistance by the offender to law enforcement authorities (as provided by section 23), ... The Parties' Competing Submissions 1. There are some issues upon which no common ground was reached as between the parties, and I will deal with them now, before turning to the less contentious. A Strict Liability Offence? 1. One point of contention between the parties was whether the offences in question are correctly described as "strict liability" offences. 2. The Prosecutor relied (reply subs par 1) upon the fact that s 125 of the EPA Act has been construed in various authorities as a strict liability offence, even in the donations context, see, e.g., Perram (at [3]), and correctly submitted (subs par 10) that "a strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed": see, e.g., Chief Executive, Office of Environment and Heritage v Rummery (2012) 192 LGERA 314; [2012] NSWLEC 271, at [122]. 3. However, Mr Lancaster submitted that s 125 must be read in conjunction with s 147(11), and insisted (par 15) that that accepted principle "does not apply in the present case because the offences in question are not strict liability offences…". The wording of the relevant legislative provisions requires proof of knowledge – or proof that a defendant ought reasonably to have had knowledge – in order for a defendant to be found guilty of an offence against the disclosure obligations in s 147, and, accordingly, the offence could or should not be seen as one of strict liability. 4. He submitted orally (at Tp25, LL20-21 and 38-42, and p26, LL16-19), that: ... s 147 (11) makes it clear in terms that these are not what the law regards as strict liability offences. ... The relevant summonses all plead knowledge. So for instance in the summons and proceedings 219273 in a reference in the particulars on p 3 of the charge "Particular K" pleads "ought reasonably to have known". There is a mental element to the offence that [donations] were made and required to be disclosed, and that's specifically the subject matter of the charge. ... ... In our submission the offence is not one of strict liability as that turn (sic) is usually understood in the criminal law, there is a role for knowledge to play and it's a role that's delineated by s 147(11) of the Act. 1. I accept Mr Lancaster's submissions in this respect, noting that his client pleaded guilty to all four charges on the basis of such imputed knowledge (Tp25, LL44-45). Objective Seriousness 1. The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision, contravention of which constitutes the offence, and its place in the statutory scheme: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [51]-[71], [168]-[169]. 2. Regard is to be had to the purpose of creating the offence through consideration of the objects of the statute: Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137, at [15]. The object of s 147 is set out in s 147(1) (quoted above at [48]). 3. Determining the objective seriousness of an offence fixes the upper and lower limits of a sentence, which should be proportionate to the offence: Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80, at [94]. 4. The Prosecutor contended that the present offences "should be regarded as being toward the upper range of seriousness for such offences given the number of political donations that were not disclosed", i.e. six (subs par 19 – emphasis mine). 5. In contrast, Mr Lancaster submitted that the offences were at the "low end" of objective seriousness. 6. He described the donations as, objectively, "modest payments made for tickets to attend breakfast, lunch or dinner functions". The relevant planning applications affected only a small local component of Optus's huge mobile network, and the small total of $5,400 in donations was made over a "short" period. He characterised the non-disclosures as "inadvertent" in character (subs pars 18, and 24-26). 7. He described the commission of the offences as "a rare and isolated instance of an inadvertent non-disclosure of political donations" (Tp29, LL28-29), and "an uncharacteristic and brief episode in what is otherwise a very large, ongoing and lawfully conducted business" (Tp34, LL22-23). 8. He also submitted orally (Tp10, L40-48): … Optus has pleaded guilty to the offence so Optus has accepted all of the elements of the offence, one of which is it ought reasonably have been aware of the obligation to disclose these donations in the four relevant applications. That's part and parcel of our plea but there's still obviously a question for your Honour on sentencing as to the place and the range of seriousness of the conduct and as we said in writing we contend we're at the low end of the range including because of the inadvertent character of the non-disclosure and that's not just inadvertent from the executive level but inadvertent from the officer level as well … 1. While acknowledging Optus's failure to disclose under s 147, Mr Lancaster noted that the donations had been declared, as separately required, to the NSW Electoral Commission. He submitted (pars 21-22) that "the perception of undue influence on planning decisions is reduced in circumstances where Optus otherwise publicly disclosed the Donations and did not attempt to hide the Donations from the public". 2. I accept the Defendant's submissions on "objective seriousness", and would rank each offence towards the lower end of any scale of seriousness. (See my discussion of ranking and scales in Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210, at [233]-[249]). The State of Mind of the Defendant 1. The Defendant's state of mind in the commission of the offences was a highly contested issue in these sentencing proceedings. 2. Mr Sheridan, in his contentious letter of 24 July 2018, stated that he was "writing this letter to the Court to address the charges and to provide some further information …", but he also offered Optus's apologies to the Court for its conduct in respect of the four charges. 3. Although I permitted the tender of Sheridan's letter, the Prosecutor submitted (Tp22, LL40-44) that: … where your Honour has permitted the tender of the letter from Mr Sheridan that Mr Sheridan's letter should be regarded as a self-serving untested statement and should be given extremely limited weight especially in the portions where objection has been taken. 1. The Prosecutor also noted that the Defendant had not put on any affidavit evidence regarding its awareness of the obligations under s 147 EPA Act, but that parts of the Sheridan letter could be construed as indicative of the Defendant's state of mind. Ms King highlighted (subs par 20) Sheridan's comment that: "Optus accepts that it did not, at the relevant times, have in place systems that were adequate to ensure that that (sic) requirements of the EPA were met." 1. The Prosecutor submitted (par 21) that this statement could be characterised as an admission of negligence in relation to the commission of the offences but Mr Lancaster submitted (par 33) that it "cannot and should not be [so] characterised …". He characterised the Prosecutor's use of the term "negligence" as 'ambiguous'. He said (Tp26, LL30-35): The prosecutor uses negligence in an ambiguous way that in our submission is objectionable because it seems that what the prosecutor's point is is (sic) that it's more than simply ought reasonably to have known but some state of mind of the defendant that warrants the imposition of or the conclusion of a higher range of objective seriousness which in our submission is not a proposition that can or should be accepted in the proceedings. 1. The Prosecutor also relied upon provisions of the MSA to establish the Defendant's state of mind. As Visionstream was contractually obliged to consult with the Defendant regarding any development applications, "the failure of the Defendant's (sic) to supervise the making of development applications on its behalf should be characterised as negligent" (subs par 23). 2. The Prosecutor said (at Tp22, L46-p23, L21): In relation to the operation of the MSA, which was the relevant agreement governing the relationship between Singtel Optus and Visionstream, I'd like to refer to para 22 of the prosecutor's submissions on penalty where the key clauses of the MSA are drawn to the Court's attention in relation to the obligation to liaise with authorities and to provide accurate regulatory information to regulatory authorities. In particular cl 50.2 introduces this concept of a site regulatory issue and that's referred to in para 22(f). Clause 50.3(a) imposes an obligation on the suppliers, so that's Visionstream, to consult with Singtel Optus in relation to site regulatory issues and to the extent that evidence from Mr Lambotharan has been admitted which states that Visionstream operated on their own in relation to this kind of issues it ought to be rejected in favour of the clear terms of the MSA. In particular cl 50.3(b) imposes an obligation on Optus to respond to queries in relation to site regulatory issues as soon as reasonably practicable. Further, cl 50.4 of the MSA imposed an obligation on Visionstream to follow any directions from Optus in relation to a site regulatory issue. So the situation was that at the time these offences occurred Optus had the power to make sure that these development applications were submitted with accurate information in relation to political donations but for reasons that aren't before the Court did not do so. 1. The Defence case is that the Defendant's breaches were "inadvertent". While noting that Visionstream's obligations under the MSA could not excuse the Defendant's breach, Mr Lancaster submitted that it could go some way to explaining the circumstances behind the non-disclosure. He submitted (par 36-37): 36. Optus acknowledges that Visionstream's responsibilities under the MSA do not excuse Optus's non-compliance with the disclosure obligations in s 147 of the EPAA; however, the obligations placed upon Visionstream under the MSA explain why Optus in fact had no reason to believe that it was in breach of these obligations with respect to MOD 7558 and DA 7031: Lambotharan Affidavit at [15], [21]-[22], [26]. 37. With respect to the MOD 7531 and MOD 8047, Mr Geoff Thiel, who lodged these modification applications for Optus, also genuinely believed that all relevant disclosures had been made because Mr Harrigan of KT, which was the applicant in the underlying DA (DA 6968), had completed Political Donations Disclosure Statements: Lambotharan Affidavit at [25]; see above at [5]. In addition, Mr Thiel was unware (sic) that Optus executives had attended the functions sponsored by political parties or that Optus had made political donations during the relevant period: Lambotharan Affidavit at [25]. Again, the Defendant accepts that Mr Thiel's belief does not excuse non-compliance with the disclosure obligations, but it reinforces that the breaches of s 147 of the EPAA in the present case were unintentional, accidental and were at the low end of the range of objective seriousness. 1. In his oral submissions he added (Tp29, LL7-24): The reference to Visionstream's very comprehensive obligations under the MSA including in cll 48 and 49 in respect of development applications is to highlight to your Honour that at a practical day to day level it was Visionstream that was taking the running of those development applications and it was Visionstream to actually prepare and lodge the documents in a compliant way, and of course Optus has, your Honour could obviously infer, many hundreds of these types of applications nationally in any single year, it's a massive enterprise that always requires development applications or modifications to development applications for its proper conduct. None of that is excusing the breach but it is explaining the breach in respect of Visionstream as an inadvertent one, inadvertent because no officer or employee of Optus is shown on the evidence to have had an inkling that Visionstream wasn't doing its contractual obligations as it should have, and again that's not by way of avoiding but it is by way of explaining and making the respectful submission to your Honour that while it shouldn't have occurred it did occur in a context in which Visionstream had a contractual responsibility to do certain things that was not complied with in this respect. 1. I accept that the Defendant's conduct displayed a degree of carelessness (or inadvertence), but I cannot accept that its failings are so serious as to be intentional, reckless, or negligent (in the criminal sense), such as to establish an aggravating factor. As Pain J noted in Perram, at [32]: ... Criminal negligence is negligence to a very high degree and must be established beyond reasonable doubt: Callaghan v R (1952) 87 CLR 115; [1952] HCA 55 at 122. 1. The defendant, on the presently admitted or proven facts, is certainly not blameless. Whatever the corporate arrangements between Optus and its subcontracting companies, there was a need for Optus to have procedures in place to ensure compliance with the relevant legislation on both reporting and disclosure of donations. Guilty Pleas 1. While it is not contested that the Defendant should be entitled to some discount by virtue of their guilty pleas, the timing of the entry of those pleas, and therefore the extent of the discount to be afforded to the Defendant, was the subject of some contest between the parties. 2. The leading authority on the discounts to be allowed for a guilty plea is found in R v Thomson; R v Houlton ("Thomson") (2000) 49 NSWLR 383. The maximum discount is normally 25%, applied where the Court is satisfied that the plea was entered "at the earliest (practical?) opportunity". 3. In the Prosecutor's written submissions (at par 32), it was noted simply that the Defendant "had pleaded guilty, although not at the earliest opportunity" (my emphasis), but, in its reply submissions (at par 7), it acceded to the Defendant's submission of "first available opportunity", in respect of the offences connected to MOD 7531 and MOD 8047 (matters 2017/219273 and 219276), those being the planning applications lodged by the Defendant itself. 4. As such, it was Mr Lancaster's submission that those pleas of 8 September 2017 should attract the maximum discount for their utilitarian value (subs par 38). 5. I accept that submission, and will apply a discount of 25% in those two cases. 6. In respect of the offences connected to DA 7031 and MOD 7558 (matters 2017/219274 and 219275), those being the planning applications lodged by Visionstream, Mr Lancaster acknowledged the relatively late timing of the pleas, which were ultimately entered on 21 May 2018. He argued (par 39), that, despite that timing, a "real utilitarian benefit" flowed from those pleas, which allowed for the vacation of a scheduled three-day hearing. He submitted (at Tp34, LL1-2), that your Honour would apply the maximum utilitarian discount of 25%, or alternatively, something very close to that, in order of 20%. 1. On the other hand, the Prosecutor submitted that those latter pleas were not entered until well after the charges had been set down for hearing on 8 December 2017. Ms King submitted (reply subs par 8): The other pleas of guilty were entered on 21 May 2018 after the prosecutions had been listed for hearing on 8 December 2017. In the guideline judgment of [Thomson], the Court of Criminal Appeal indicated at [155] that there would need to be exceptional case for the maximum discount being given once a matter has been set down for trial. The Defendant has not identified any exceptional circumstances in this matter. 1. Then in oral submissions, she said (at Tp39, LL22-35): … given the proximity to the hearing date and the preparation of the matter for hearing, (the discount) would be more akin to 5 to 10%. Certainly the prosecutor doesn't cavil with the proposition that there is some utilitarian value in the plea of guilty but it was at a significant close time to the actual hearing date. ... KING: Yes, an officer of my client reminds me that senior counsel had been briefed for that hearing. HIS HONOUR: On your side? KING: Yes. 1. I reject those submissions. The delay was largely explained by the plea and case management negotiations, and I am fortified in my decision by authority: 2. Gaudron, Gummow and Hayne JJ said, in Wong v the Queen; Leung v the Queen ("Wong") [2001] HCA 64; 207 CLR 584, at [76]-[77]: 76 In [Thomson], Spigelman CJ reviewed the state of the authorities in Australia that deal with the "two-stage" approach of arriving at a sentence, in which an "objective" sentence is first determined and then "adjusted" by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen [(1999) 198 CLR 111, at 121-122 and 156] expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender's place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to "discount" a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher [(1991) 23 NSWLR 220, at 228] when he said that: "It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical." So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform. 77 The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment. 1. In Cameron v the Queen ("Cameron") [2002] HCA 6; (2002) 209 CLR 339, Gaudron, Gummow and Callinan JJ said, at [22]: The remarks of Ipp J ... reflect what has earlier been said in relation to the rationale for the rule that a plea may be taken into account in mitigation, namely, that, leaving aside remorse and acceptance of responsibility, the operative consideration is willingness to facilitate the course of justice. And once that rationale is accepted, the respondent's suggestion that the extent to which a plea of guilty may be taken into account in mitigation may vary according to whether it was or was not a "fast-track" plea must be rejected. Rather, the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity. 1. Pepper J recently discussed these issues in Environment Protection Authority v Whitehaven Coal Mining Limited ("Whitehaven") [2019] NSWLEC 27, at [231]-[235]. Her Honour referred to "the earliest reasonable opportunity", c.f. "the first available opportunity", before quoting from Wong and Cameron, which she introduced with these remarks (at [234]): The utilitarian value of a plea of guilty is not to be determined by recourse to some formulaic mathematical value directly dependent upon the number of times a defendant comes before a court prior to the entry of the plea ... 1. Her Honour also mentioned "a process of negotiation" which had occurred in that case, and found ([235]) that "the timing of the entry of the plea was entirely reasonably (sic) and that the utilitarian value of the plea had in no way been diminished". 2. I accept Mr Lancaster's view that in all the circumstances of the management of the related prosecutions, something very close to the maximum discount (if not the maximum 25%) should be allowed, and I will apply a 20% discount in those two matters. Evidence of Contrition and Remorse 1. The Prosecutor noted the apologies expressed in both the Sheridan Letter and the Lambotharan affidavit, but submitted that there is no affidavit evidence of the Defendant's good character (subs par 33). Ms King said (at Tp24, L21-29): The final point that I wish to make in relation to the impression that is before the Court, and noting the fact that sentencing is always an impressionistic exercise, that the failure of Mr Sheridan to put on an affidavit is not just the matter that goes to the admissibility of his statement, or even to the weight to be attributed to the statement, but is also a matter to which the Court would have regard when assessing the level of contrition and remorse that is expressed by Singtel Optus and that a sworn statement as to those kind of contrition and remorse and the steps that were taken would be a matter to which the Court would have regard and hasn't occurred in this case. 1. I have already accepted the seniority of Lambotharan and Sheridan in the Defendant company, and I note also the presence of a senior executive of Optus throughout the sentencing hearing (Tp22, LL31-32). 2. I agree with the company's submissions (at par 41) that: "Optus has accepted responsibility for the offences and regrets their occurrence. The Court should find that Optus has demonstrated genuine and appropriate contrition and remorse". 1. Sheridan's letter, although untested, went no further than the evidence on affidavit which could have been tested. Indeed, Mr Lancaster highlighted the apologies expressed within Lambotharan's affidavit. I accord substantial weight to the statements of both these executives. 2. I find that the company's remorse has been expressed in a "genuine" way, rather than it relying on its counsel to offer "smooth apologies" from the bar table: see Preston ChJ in Waste Recycling, at [203], and [214]-[215]. Other Sentencing Factors Assistance to Authorities 1. It has been acknowledged by the Prosecutor that the Defendant cooperated in the preparation of the ASoF and the ABoD (Defendant's subs par 44). This amounts to a mitigating factor under s 21A(3)(m) of the CSP Act. Likelihood of Reoffending 1. Mr Lancaster submitted (par 46) that the Court should accept that "Optus is unlikely to reoffend and that it has taken proactive steps to ensure that there is no repetition of the non-disclosures" (s 21A(3)(g)). 2. He detailed at length the actions which it had taken in the wake of the present charges (pars 46-56), and made particular reference to the Optus Political Donations Policy, dated 22 May 2018, introduced as part of the Defendant's response to the present charges. (Exhibit LK-6 to the Lambotharan Affidavit). 3. The Prosecutor described the policy as "arguably deficient", because it did not purport to apply to "political donations or gifts made by an employee or contractor in a personal capacity" (subs 29). Ms King submitted (par 30) that, because of such arguable deficiencies within the Political Donations Policy, "the risk of future breaches is not entirely eliminated", and, orally, that "… the policies do not cover the field that the legislation addresses…" (Tp24, LL18-19). 4. On the other hand, Mr Lancaster contended (par 56) that "the Court should find that [Optus] has put in place appropriate systems to prevent future incidents of non-disclosure of political donations under the EPAA and, thus, the risk of re-offending is very unlikely". 5. I accept Mr Lancaster's submissions. 6. I am satisfied that the Defendant has taken comprehensive steps to address its offending, in the wake of the present charges, including ensuring that its contractors are made aware of their obligations under the legislation. Lack of Prior Criminality 1. It is agreed between both the parties (Prosecutor's subs par 31, Defendant's subs par 57) that the Defendant has no prior criminal history of environmental offences, a mitigating factor under s 21A(3)(e) of the CSP Act. Prior Good Character 1. The Prosecutor pointed to the absence of affidavit evidence of the "good character" of the Defendant, a mitigating factor under s 21A(3)(f) of the CSP Act. 2. While relevant evidence may not be on oath, I find no reason not to accept Sheridan's statements regarding "Optus's community contributions in the education, employment, inclusion and wellbeing spheres". 3. As Mr Lancaster noted (subs 58): ... Optus is the second largest telecommunications service provider in Australia and is constantly reviewing and upgrading its telecommunications infrastructure to improve coverage to the community: AB, Tab 34 at 1; Lambotharan Affidavit at [10]. The Defendant should be regarded by the Court as a good corporate citizen with a previously unblemished record of compliance with environmental and planning laws. 1. I accept those submissions in relation to Optus's good character, and I am, therefore, also satisfied that the Defendant has good prospects of rehabilitation (s 21A(3)(h)). Totality 1. The Defendant submitted (subs par 16), and both the Prosecutor and the Court accept, that, because the same set of events formed the basis for each offence, the principle of totality should apply when determining the appropriate sentence: see AGL, at [109]. 2. The principle was articulated by Street CJ in R v Holder; R v Johnston [1983] 3 NSWLR 245, at 260; it is well-known and need not be repeated. What needs to be noted, in the context of the present case, is what Preston ChJ said, in Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd ("Orica") [2015] NSWLEC 109, at [142]: Because there are two offences arising out of the same incident, the totality principle needs to be considered. The effect of the totality principle is to require the Court, which has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is just and appropriate and reflects the total criminality before the Court. In the case of fines, adjustment may be made by reducing the amount of the fine for each offence. Care needs to be taken, however, to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence. Evenhandedness 1. The Prosecutor's submissions (par 25) outlined some of the history of similar offences in recent years, and recognised that since the introduction of the relevant provisions in 2008, there appear to have been five prior convictions for offences arising under s 147 of the EPA Act. 2. Ms King quoted (pars 25-26) comments made in Shoalhaven Starches and Perram, which, in terms, referred to comments in Aston and AGL, but fell short of direct comparisons with the facts and circumstances of the present case. 3. Mr Lancaster, on the other hand, submitted that the circumstances of this case warranted a finding of lower objective seriousness than in other comparable cases. He submitted (Tp33, LL1-10): …the circumstances before your Honour in this case, are four charges and six political donations which are the same six in respect of each charge, and the six are within…a comparatively shorter time period of just over six months as compared to AGL and Shoalhaven Starches which were more charges, more donations and over a longer period of time. All of that, as your Honour of course can perceive, will support our eventual submission that your Honour would find these offences at a lower range of objective seriousness than that found in either AGL or Shoalhaven Starches… 1. Too strict comparisons of cases can be unhelpful. For example, in Shoalhaven Starches the pattern of donating was complex and the total amount involved ($23,355) more than four times the present total. In addition, Moore J concluded that there was reckless or negligent behaviour by the Defendant, and found that the five offences fell within the "middle to high" range of the mid-level of objective seriousness. 2. In another context, Pepper J observed, in Whitehaven (at [258]): The task of the sentencing court is to pursue the ideal of even-handedness in the matter of sentencing (R v Oliver (1980) 7 A Crim R 174 at 177; R v Visconti [1982] 2 NSWLR 104 at 107). However, care must be taken in the task of achieving consistency. There is always difficulty comparing the penalty in one case with a penalty in another because of the wide divergence of facts and circumstances in each case (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357] at [365]), and one case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]). 1. On balance, after reviewing the previous cases, I accept the Defendant's submissions: The present case is clearly of a lower objective seriousness than the most recent cases for like offences, especially Shoalhaven Starches and AGL, and consistency in sentencing requires that the penalties I impose reflect that. Deterrence 1. Ms King cited the need for general and specific deterrence, stating (subs par 24): ... While the objects of the EPA Act are general in nature, they still indicate Parliament's intention that applications for development of property should be dealt with by way of transparent and accountable processes. 1. Taking into account the purposes of sentencing under 3A, and the purposes for which the specific relevant legislative provisions were enacted, the Court accepts, in seeking to ensure that the community is assured that political donations of any sort do not have undue influence, that the penalties imposed in this case must have elements of both general and specific deterrence. Conclusions 1. The offending in the present case displays a level of objective seriousness in the low range, clearly less than in the cases of Shoalhaven Starches and AGL. 2. I accept the Defendant's observations about the comparatively modest amount of "donations" involved, and the limited time period over which those payments for political functions were made. 3. Nonetheless, the Court must uphold the integrity of the disclosure elements of the development approval process in the EPA Act, and that process is damaged when it is disobeyed. 4. I find no aggravating factors, pursuant to s 21A(2) of the CSP Act, but the Defendant has demonstrated several mitigating factors, pursuant to s 21A(3) (see [86] above): 1. The steps it has taken to prevent commission of further offences have been comprehensive and well considered; and 2. It is entitled to two discounts of 25% and two of 20% in respect of its early guilty pleas. 1. I also take into account the Defendant's co-operation with the Prosecutor (e.g. ABoD and SoAF), its decisions to plead guilty, its agreement to pay the Prosecutor's costs, and other evidence of its contrition and remorse. 2. Optus is also entitled to the application of the principle of totality. 3. Each offence should attract a "starting" fine of $10,000, out of the available maximum of $44,000, before (a) discounting for guilty pleas (25% in two cases, and 20% in the other two), then (b) reduction on account of totality (by $1,500 in each case), and (c) subject to orders for moieties to be paid to the Prosecutor. The resulting total fine of $25,000 reflects the culpability of the Defendant, and satisfies par [142] of Orica ([146] above). 4. I have concluded that a publication order is appropriate in the present case. 5. I generally agree with Ms King's closing submissions (Tp41, LL30-37, as quoted in [38] above): Such a notice informs or reminds the public that such an offence exists, and may add some "sting" to the imposition of a fine. The objectives of general and specific deterrence are thus satisfied. 6. Such an order is no less appropriate because these offences have been found to be of a low level of objective seriousness, but it can apply only in respect of the three 2016 matters (nos 219273, 219274 and 219276 – see [37] above). 7. I prefer the draft notice submitted by Mr Lancaster, subject to adding a mention of the costs order, contrary to his written submission on the notice, dated 18 September 2018 (at par 5). 8. I believe that the notice should appear in the Australian Financial Review (to reach the broader business community), the Canberra Times (covering the region concerned in the charges), and the Monaro Post (covering the relevant local area of Optus's operations). Orders 1. I make the following orders: (A) In proceedings 2017/219273 (1) The Defendant is convicted of the offence charged in the summons. (2) The Defendant is fined $6,000. (3) Pursuant to s 122 of the Fines Act 1996 I direct that half of the fine in Order 2 be paid to the Prosecutor. (B) In proceedings 2017/219274 (1) The Defendant is convicted of the offence charged in the summons. (2) The Defendant is fined $6,500. (3) Pursuant to s 122 of the Fines Act 1996 I direct that half of the fine in Order 2 be paid to the Prosecutor. (C) In proceedings 2017/219275 (1) The Defendant is convicted of the offence charged in the summons. (2) The Defendant is fined $6,500. (3) Pursuant to s 122 of the Fines Act 1996 I direct that half of the fine in Order 2 be paid to the Prosecutor. (D) In proceedings 2017/219276 (1) The Defendant is convicted of the offence charged in the summons. (2) The Defendant is fined $6,000. (3) Pursuant to s 122 of the Fines Act 1996 I direct that half of the fine in Order 2 be paid to the Prosecutor. (E) Across the four proceedings generally: (1) The Defendant is to pay the Prosecutor's costs in the agreed sum on $40,000. (2) Exhibit P1 is to be returned to the Prosecutor, and the Defendant's bundle of authorities is to be returned to the Defendant, but Exhibit P2 is to remain on the Court file. (F) In respect of matters 2017/219273, 2017/219274, and 2017/219276: (1) Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 and s 126(2A) of the Environmental Planning and Assessment Act 1997, the Defendant is ordered to cause a notice in the form of annexure "A" to this judgment, at a minimum size of 9 centimetres by 12 centimetres, to be placed within 28 days of the date of this order, and at the Defendant's expense, in the following publications: (a) the Australian Financial Review (on an odd-numbered page within its first 11 pages); (b) the Canberra Times (on an odd-numbered page within its first 11 pages); (c) the Monaro Post (on page 3). (2) Within 35 days of the date of this order the Defendant is to provide to the Prosecutor, and file with the Court, a complete copy of the pages of each of the three publications in which the notice appears. ********** Annexure A 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: 08 April 2019