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WaterNSW v Peter James Harris and Jane Maree Harris [2023] NSWLEC 33 (28 March 2023)

Last Updated: 28 March 2023



Land and Environment Court
New South Wales

Case Name:
WaterNSW v Peter James Harris and Jane Maree Harris
Medium Neutral Citation:
Hearing Date(s):
14 November 2022
Date of Orders:
28 March 2023
Decision Date:
28 March 2023
Jurisdiction:
Class 5
Before:
Robson J
Decision:
See orders at [166]
Catchwords:
SENTENCING — environmental offence — offences under s 91G(2) of the Water Management Act 2000 (NSW) — water taken in breach of approval condition — low range of objective seriousness — defendants pleaded not guilty — control over the cause of the offence — subjective circumstances of the defendants — need for both specific and general deterrence — determination of appropriate penalties — fines imposed with moiety to prosecutor — publication order made — orders as to costs
Legislation Cited:
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
Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304
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 Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241
Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205
Edwards v The Queen [2021] NSWCCA 57
Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178
Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90
Environment Protection Authority v MA Roche Group Pty Ltd [2015] NSWLEC 29
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley [2009] NSWLEC 124
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Gordon Plath of the Department of Environment and Climate Change v Fish; Gordon Plath of the Department of Environment and Climate Change v Orogen Pty Ltd [2010] NSWLEC 144; (2010) 179 LGERA 386
Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5
Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113
Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Robert Beltrame [2023] NSWLEC 18
Harrison v Perdikaris [2015] NSWLEC 99
Keys v West (2006) 65 NSWLR 668; [2006] NSWSC 136
Kinney v Green (1992) 29 NSWLR 137
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Natural Resources Access Regulator v Tony Thompson [2022] NSWLEC 48
Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30
Peter James Harris and Jane Maree Harris v WaterNSW [2021] NSWCCA 184
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
R v DP [2019] NSWCCA 55
R v Kilic (2016) 259 CLR 256; [2016] HCA 48
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Re Stubbs [1947] NSWStRp 12; (1947) 47 SR (NSW) 329
Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26
Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125
Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1
WaterNSW v Harris (No 3)  [2020] NSWLEC 18 
Category:
Sentence
Parties:
In proceedings 2018/00073936
WaterNSW (Prosecutor)
Peter James Harris (Defendant)

In proceedings 2018/00073940
WaterNSW (Prosecutor)
Jane Maree Harris (Defendant)
Representation:
Counsel:
M W Maconachie (Prosecutor)
M R Elliott SC with G Lewer (Defendants)

Solicitors:
Norton Rose Fulbright (Prosecutor)
Horton Rhodes Lawyers (Defendants)
File Number(s):
2018/00073936; 2018/00073940
Publication Restriction:
Nil

JUDGMENT

Nature of proceedings and outcome

  1. Peter James Harris and Jane Maree Harris (collectively, the ‘defendants’) are each to be sentenced after having been found guilty of an offence against s 91(G)(2) of the Water Management Act 2000 (NSW) (‘WM Act’) for taking water in contravention of a term of the applicable Water Use Approval 85CA753236 (‘Approval’). The Court’s decision on liability in relation to each defendant was handed down on 19 March 2020: WaterNSW v Harris (No 3)  [2020] NSWLEC 18  (‘WaterNSW v Harris (No 3)’).
  2. After an unsuccessful appeal to the Court of Criminal Appeal against the finding on liability (Peter James Harris and Jane Maree Harris v WaterNSW [2021] NSWCCA 184) and an unsuccessful application for special leave to appeal to the High Court ([2021] HCASL 252; [2021] HCASL 253), a sentencing hearing was held on 14 November 2022, and the Court’s task is now to determine and impose appropriate sentences on Peter Harris and Jane Harris for the offence each has committed.
  3. Conscious that there are two separate sentencing proceedings before the Court, and for the reasons that follow, I have determined that Peter Harris should be fined the sum of $40,000 for his offence against s 91G(2) of the WM Act; and that Jane Harris should be fined the sum of $20,000 for her offence against s 91G(2) of the WM Act.
  4. I have also determined that pursuant to s 353G(1)(a) of the WM Act, the defendants are to place an advertisement in specified newspapers publicising (albeit anonymously) the sentences of the Court for the commission of the offences.
  5. I have also determined that pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) (‘Criminal Procedure Act’), the defendants are to pay the prosecutor’s costs of the proceedings for the offence for which they have been convicted in the agreed amount of $448,260.50 in respect of the period 7 March 2018 to 30 May 2022 and that they are to pay the prosecutor’s professional costs from 1 June 2022 onwards as agreed or assessed pursuant to s 257G of the Criminal Procedure Act.

Background

  1. The salient factual background is detailed in WaterNSW v Harris at [2]-[22].
  2. The amended summonses particularised the charge as follows:
“Approval: Peter Harris and Jane Harris are the landholders and occupiers of Beemery Farm and the co-holders of:
• Water Access Licence 33692 [reference 85AL753235] (WAL33692); and
• Water supply Works and Water Use Approval 85CA753236 (the Approval).
Manner of contravention: Water was taken in contravention of a term or condition of the Approval in that:

a) It was a term or condition of the Approval that water is prohibited from being taken when the flow in the Darling River at the Bourke gauge is equal to or less than 4,894 ML/day.

b) Approximately 3147 ML of water was taken in the 2015/2016 water reporting year by means of the water supply works nominated under the Approval and situated on the landholders’ land.

c) In the period 22 June 2016 to 27 June 2016, water was taken at times when the flow in the Darling River at the Bourke gauge was less than 4,894 ML/day.”

  1. A statement of agreed facts was filed on 25 March 2022 for the purposes of the sentencing exercise. The following agreed facts are set out in that document:

Evidence

  1. In addition to the statement of agreed facts, the Court received extensive documentary and oral evidence. Further facts not recorded above or in this section of the judgment are noted in my consideration of the parties’ submissions.
  2. The prosecutor read the affidavits of Reider Russell Cocks affirmed 1 June 2022; Trevor Lee Pearce affirmed 28 May 2018; Andrew Thomas Cutler affirmed 5 March 2018 (in part); and Paul O’Neill sworn 6 March 2018 (in part). The prosecutor also relied upon certain evidence that was admitted at the trial, including an exhibit to the affidavit of Trevor Lee Pearce affirmed 28 May 2018 (which became Ex A in the trial proceedings), with part of that exhibit containing data recorded by the MACE Series III meter connected to the Pumps on Beemery Farm which recorded that between 22 June 2016 and 27 June 2016 (‘charge period’), the Pumps extracted 1,896.17 ML of water, or approximately 1.9 billion litres.
  3. The defendants read the affidavits of Jane Harris affirmed 30 August 2022, and Peter Harris affirmed 30 August 2022 (following objections). Peter Harris also gave oral evidence.
  4. In summary, Jane Harris deposed that, in circumstances where she did not review the contract for the purchase of the water access licence (that being Water Access Licence 33692 (‘Water Access Licence’)) in 2014 and was at all material times lacking management or control over Beemery Farm, she was neither aware of the conditions attached to the Approval nor was she responsible for the decision to pump water at Beemery Farm during the charge period. In addition, Jane Harris deposed to the fact that she was travelling overseas at the time of the pumping which gave rise to the offence the subject of these proceedings, and that Beemery Farm’s managers oversaw decisions in relation to pumping during this period. Jane Harris was not cross-examined.
  5. In summary, Peter Harris deposed to his experience of over 30 years in the irrigation farming industry, and to his current roles as a proprietor of P & J Harris & Sons; director of Budvalt Pty Ltd (which trades as Miralwyn Cotton), owner of farming properties Lochinvar, Glen Acre, Miralwyn, Gerra and Wombullion; and co-owner of farming properties including Beemery Farm, Latoka, Rumleigh, Brewon, Four G and Mercadool. Peter Harris deposed that from 2010, he contemplated purchasing irrigation farms from Clyde Agriculture, including Beemery Farm, and that he was aware that the pumping of water from the Barwon-Darling River system was determined by the flow rate at gauges along the reaches of the river and fell within three different classes of licence being A, B and C. In these circumstances, he was provided with information memoranda dated June 2010 and May 2021, which comprised a summary of the licenses and key conditions relevant to each property, and on the basis of the second information memorandum, he formed the view that a B Class licence, and corresponding B Class conditions, applied to Beemery Farm.
  6. Peter Harris deposed to instructing Mr Peter Gall (a solicitor at Rhodes Kildea Lawyers) to act for himself and Jane Harris in the purchase of the irrigation farms (and the water access licences from Clyde Agriculture (including the Water Access Licence and the Approval)), and that in those circumstances, he did not review the contract of sale for any “irregularity” with the terms of the water access licences being purchased and “assumed” that Mr Gall would bring such matters to his attention. Peter Harris deposed that his reliance on the second information memorandum (dated May 2021) was justified by the global nature of Clyde Agriculture’s operations and the group’s expertise. The purchase of Beemery Farm was settled on 12 June 2014, and Peter Harris deposed to his active effort in upholding Clyde Agriculture’s commitment to the preservation of the environment. Peter Harris deposed that he hired Daniel Lindsay, a former employee of Clyde Agriculture, following the purchase of Beemery Farm, and relied on his familiarity of the pumping conditions.
  7. Peter Harris also deposed that he was overseas during the duration of the charge period, and that he did not have direct control over the pumping which gave rise to the offence the subject of these proceedings, but that he received a phone call and subsequent SMS text messages from his son, Jack Harris, informing him that pumping events were expected at a few properties, including Beemery Farm, for a period of 14 days. Peter Harris further deposed that, despite the offence, the defendants did not exceed their volumetric entitlement for the 2015/2016 water reporting year, paid all applicable charges, and that pumping in accordance with the Water Access Licence would have been permissible two days following the charge period.
  8. Peter Harris deposed that he had “no recollection of even seeing the 4894 Term” (which refers to condition (5) of the Water Access Licence for Beemery Farm) and only became aware of the term on 21 November 2017 during the course of a meeting (in relation to these proceedings) with his legal representatives and Mick Allen, former Chief Field Officer with WaterNSW. He also deposed to a telephone conversation that occurred during this meeting between Mr Allen and WaterNSW after which Mr Allen confirmed that “they say that the C-Class condition [had] been applied in error”. He deposed that based on the water access licences he had previously held, he did not consider the 4894 Term to be consistent with a B Class Licence, and that he did not have “direct control” over the pumping which gave rise to the offence.
  9. In their respective affidavits, the defendants each deposed to their prior good character and lack of any prior conviction for environmental or criminal offences. In this regard, the defendants further deposed, in identical terms, to contributions made, through their businesses and personally, to charities and community groups, including within the Barwon-Darling Basin region.
  10. The defendants also deposed, in identical terms, to having facilitated the course of justice during these proceedings, including by providing the prosecutor with answers and documents in response to notices issued to each of them pursuant to s 338A(2) of the WM Act, and by not disputing the circumstances of the physical extraction of the water from the Barwon River during the charge period.

Offence provisions

  1. Section 91G(2) of the WM Act creates an offence of contravening conditions of an approval:
91G Contravention of terms and conditions of approval
...
(2) If any term or condition of an approval is contravened by any person, each holder of the approval is guilty of an offence.
Tier 2 penalty.
...
  1. Section 363A(1) of the WM Act provides:
363A Offences by joint holders of access licence or approval
(1) If an offence against this Act or the regulations arises in relation to an access licence or approval, each co-holder of the licence or approval is taken to have committed the offence.
...
  1. Section 363B(b) of the WM Act, as at the time of offending, establishes the following relevant Tier 2 penalty for individuals:
363B Penalties
For the purposes of this Act:
...
(b) a Tier 2 penalty corresponds to a maximum penalty of:
(i) in the case of a corporation ...
(ii) in any other case, 2,250 penalty units, and ...
...
  1. A penalty unit is (and has been since the time of the offending) $110.00 pursuant to s 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’). Although the maximum penalty has been increased, the maximum penalty at the time of the offence was therefore $247,500.
  2. Section 353G(1)(a) of the WM Act provides:
353G Additional orders
(1) The court may do any one or more of the following:
(a) it may order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the offender,
...

Sentencing considerations

Purposes of sentencing

  1. In fixing the appropriate penalty for the offence, s 3A of the Sentencing Act sets out the purposes of sentencing relevant to the offence and the offender, and relevantly provides:
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,
...
(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. The purposes of punishment, denunciation and retribution are important in sentencing for environmental offences because there is a need for the Court, through the sentence it imposes, to denounce the unlawful conduct, to hold the offender accountable for its actions, and to ensure the offender is adequately punished. The sentence should accord with the general moral sense of the community in relation to the offence in the circumstances of the case: Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205 (‘Clarence Valley’) at [91]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 (‘Plath v Rawson’) at [168].

Statutory matters to be taken into account in sentencing

  1. As will be seen, there is some overlap in the statutory sentencing considerations mandated by the Sentencing Act and the WM Act.
  2. Section 21A of the Sentencing Act identifies matters that the Court must take into account when determining the appropriate sentence for an offender, including relevant factors in aggravation under s 21A(2) and relevant factors in mitigation under s 21A(3). Relevant to the submissions made in this case, s 21A provides:
21A Aggravating, mitigating and other factors in sentencing
...
(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
...
(o) the offence was committed for financial gain,
...
(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),

...
(m) assistance by the offender to law enforcement authorities (as provided by section 23).
...
  1. For offences against the WM Act, the Court is also required to consider the matters set out in s 364A(1) of the WM Act which provides:
364A Matters to be considered in imposing penalty
(1) In imposing a penalty on a person for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):
(a) the impact of the offence on other persons’ rights under this Act,
(b) the market value of any water that has been lost, misused or unlawfully taken as a consequence of the commission of the offence,
(c) the extent of the harm caused or likely to be caused to the environment (including, in particular, any water source or waterfront land) by the commission of the offence,
(d) the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(e) the extent to which the person could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,
(f) the extent to which the person had control over the causes that gave rise to the offence,
(g) whether the offence was committed during a severe water shortage (that is, in contravention of an order in force under section 49A or 324),
(h) the person’s intentions in committing the offence,
(i) whether, in committing the offence, the person was complying with orders from an employer or supervising employee,
(j) in the case of an offence of taking water in contravention of this Act, whether the water so taken had been released for environmental purposes and, if so, whether the person was aware of that fact,
(k) any civil penalty that has been imposed on the person under section 60G in relation to the conduct from which the offence arises.
...
  1. The prosecutor noted that the factors in subss 1(g), 1(i) and 1(k) of s 364A of the WM Act do not arise in these sentencing matters, and that 1(a) and 1(j) are matters in respect of which there is no evidence.
  2. Section 364A(2) of the WM Act provides that the Court may also take into account any other matters it considers relevant.
  3. Before considering discrete sentencing factors, and conscious that there are two defendants before the Court for sentencing, I make three preliminary observations. First, the Court's task is to determine the sentence that should be imposed on each of Peter Harris and Jane Harris. In arriving at an appropriate sentence, the Court may not take into account facts adverse to the interests of each of the defendants unless those facts have been established beyond reasonable doubt. However, if there are circumstances in favour of the defendants that the Court proposes to take into account, it is sufficient if those circumstances are established on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 281.
  4. Second, the appropriate sentence in each case needs to reflect, and be proportionate to, the objective seriousness of the offences against s 91G(2) of the WM Act as committed by Peter Harris and Jane Harris, and the subjective and mitigating circumstances of each defendant.
  5. Third, the appropriate sentence in each case is to be arrived at by an instinctive or intuitive synthesis of all of the relevant objective and subjective circumstances: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [37]-[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ) at [70] (‘Markarian’).

Objective seriousness of the offence

  1. The objective circumstances of relevance to the offence committed by each defendant are: the nature of the offence; the maximum penalty; the reasons for committing the offence; the extent of harm caused; each defendant’s state of mind in committing the offence; the practical measures to avoid environmental harm; each defendant’s control over the causes giving rise to the offence; and the defendants’ intentions in committing the offence.

Nature of the offence

  1. The nature and purpose of the provision that has been contravened, and its place in the statutory scheme, speak to the objective seriousness of an environmental offence: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 (‘Bentley’) at [168]-[172]; Plath v Rawson at [49]; Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59].
  2. The relevant objects contained in s 3 of the WM Act identify the purpose of creating the offence against s 91G(2) with which the defendants have been charged. The objects are:
... to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular:
(a) to apply the principles of ecologically sustainable development, and
(b) to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and
(c) to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including:
(i) benefits to the environment, and

(ii) benefits to urban communities, agriculture, fisheries, industry and recreation, and

(iii) benefits to culture and heritage, and

(iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water,

...
(e) to provide for the orderly, efficient and equitable sharing of water from water sources,
(f) to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna,
(g) to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users,
(h) to encourage best practice in the management and use of water.
  1. In relation to these objects, although considering a different offence under the WM Act, being the carrying out of a controlled activity without a requisite approval, in Harrison v Perdikaris [2015] NSWLEC 99 (‘Perdikaris’), Preston CJ of LEC made the following comments which I consider are analogous to an offence against s 91G(2) of the WM Act:
“[46] There is a need for the upholding of the regulatory system under the WM Act. The system depends on persons, first, taking steps to ascertain when approval is required to carry out activities, including controlled activities on waterfront land, secondly, making application in the appropriate form and manner (including environmental impact assessment of the activity) and obtaining any approval so required before carrying out the activity and, thirdly, complying with the terms and conditions of any approval granted in carrying out the activity.

[47] Offences which undermine the integrity of the regulatory system are objectively serious. Use of the criminal law ensures the credibility of the regulatory system.”

  1. A critical feature of the regulatory scheme under the WM Act is the ability to place conditions on approvals, including, importantly, conditions regulating when water may not be taken. It is trite that the water management system depends on persons adhering to the conditions of their licences and approvals: Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5 (‘Henry Payson’) at [75]-[76] (per Pepper J).
  2. Although the defendants variously submit that when the nature of the conduct and the absence of environmental harm are considered, the extent to which the principles were undermined was minimal, such that the offending is at the bottom of the range of objective seriousness, as will be seen, I do not accept this submission.
  3. I find that by taking water contrary to the terms of the Approval, that being, when the flow of the Darling River at the Bourke gauge was less than 4894 ML per day, a mechanism for ensuring that the objects and principles of the WM Act were achieved, was circumvented.
  4. The failure to comply with a condition of an approval undermines the integrity of the regulatory scheme relating to the distribution, sharing, and taking of water: Perdikaris at [47]. The regulatory scheme allows water users to take water within a particular water management area or water source and at specified times, rates or in specified circumstances, and compliance with conditions of licences and approvals is essential to provide for the sustained and integrated management of water sources in NSW. Offences which undermine the integrity of the regulatory system are objectively serious: Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 (‘Barlow’) at [22], [27].

Maximum penalty

  1. The maximum penalty for a statutory offence reflects the public expression by Parliament of the seriousness of an offence: Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (‘Camilleri’s Stock Feeds’) at 698.
  2. The offence against s 91G(2) of the WM Act carries a maximum penalty in the amount of 2,250 penalty units: s 363B(b)(ii) of the WM Act, being at the time of the offence $247,500 for an individual. It was increased to 4,550 penalty points ($500,500) from 27 June 2018.
  3. The maximum penalty also provides a “sentencing yardstick” for the case before the Court: Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]; Markarian at [31]; Clarence Valley at [40].
  4. The sentencing court is “to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category, properly so called”: R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [19].
  5. An increase in the maximum penalty for an offence is an indication that sentences for the offence should be increased: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [31]. Be that as it may, I am conscious that there is a spectrum of offending behaviour, and that if an offence is of low criminality remains an offence of low criminality: Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [37].

State of mind

  1. While an offence against s 91G(2) of the WM Act is a crime of strict liability such that intention is not an element of the offence, a defendant’s state of mind at the time of the offending is a relevant consideration in determining an appropriate sentence. A strict liability offence that is committed intentionally, negligently or recklessly, will be objectively more serious than one not so committed: Camilleri’s Stock Feeds at 700A-E; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123].
  2. The prosecutor alleges Peter Harris committed the offence either recklessly or negligently. The prosecutor points to Peter Harris’ evidence that he has been a farmer, including as a cotton grower, and water user for more than 30 years; that he conducts businesses that hold 40 water access licences and 54 water supply works and water use approvals, and that those approvals cover 112 extraction sites. In circumstances where the only evidence Peter Harris gives in relation to the steps he took to satisfy himself of the obligations imposed by the Approval is his reliance upon the previous holder’s practices, the prosecutor submits that he took no steps to ensure that the assumptions upon which he asserts he was acting were correct.
  3. The prosecutor contends that it is highly improbable that a person of Peter Harris’ experience and apparent agricultural business acumen would not have been aware of the 4894 Term prior to November 2017 and his evidence in this regard should not be accepted. Further, even if the Court does accept his assertion that he was not aware until November 2017 of the 4894 Term, the prosecutor contends that the failure to know of the existence of a fundamental obligation under the Approval after years of operation amounts to recklessness, or alternatively, criminal negligence.
  4. The defendants submit that, in circumstances where the suggestion of criminal negligence or recklessness was never put to Peter Harris (and where it was never put that he was even indifferent to the risk), the prosecutor’s submission cannot be entertained; and submit that, given Peter Harris’ evidence, he was not reckless, and he was not criminally negligent simply because a “mistake” was made. Moreover, the prosecutor never suggested to Peter Harris, first, what precisely he should have considered or looked at to find himself in a better position than that in which he was; and second, that the evidence Peter Harris has given as to when he became aware of the 4894 Term, was not true.
  5. The test for recklessness is subjective and relates to the state of mind of an offender who, while performing an act is aware of the risk that a particular consequence is likely (in the sense that it is real and not remote) to result from that act or omission. As such, an offender’s conduct can be found to be reckless if they are put on notice, in the sense that they believe or suspect, that an act or omission may be unlawful but nevertheless proceed to engage in it without making further enquiries.
  6. To amount to criminal negligence, 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 – there must have been an indifference to an obvious risk: Gordon Plath of the Department of Environment and Climate Change v Fish; Gordon Plath of the Department of Environment and Climate Change v Orogen Pty Ltd [2010] NSWLEC 144; (2010) 179 LGERA 386 at [81] (per Preston CJ of LEC).
  7. I am uncomfortable with Peter Harris’ evidence (and in this sense, Jane Harris’ evidence) that, despite being an experienced farmer and cotton grower with decades of experience, he claims not to have known the specific conditions of the Approval and in a general sense, seeks to place responsibility both upon his subordinates, and/or abandon responsibility having been overseas at the time of the offending.
  8. However, although I maintain concern regarding Peter Harris’ evidence, I am not satisfied that the prosecutor has established that Peter Harris acted negligently in circumstances where, as noted above, negligence objectively assesses an offender’s conduct not by reference to what they knew, foresaw, or did, but by reference to what a hypothetical reasonable person would have known, foreseen, or done in the circumstances. In these circumstances, negligence refers to whether a hypothetical reasonable person in the position of Peter Harris would have known or foreseen that the consequence or circumstances that water would be extracted not in accordance with the Approval, is likely to result: Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125 at [36] (per Preston CJ of LEC). I am not satisfied that on assessment of all the facts, I can conclude that the failure to take relevant precaution warrants criminal punishment. Again, although not without some real concern in relation to a person in Peter Harris's position (with his experience and knowledge as outlined above), the available evidence does not establish to the requisite criminal standard that he committed the offence recklessly or negligently.

Intentions in committing the offence (s 364A(1)(h) of the WM Act)

  1. Section 364A(1)(h) of the WM Act requires the Court to consider an offender’s intentions in committing the offence. The criminality involved in the commission of an offence is measured not only by the seriousness of what actually occurred but also by reference to the reasons for its occurrence: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Bentley at [237].
  2. In this regard, and generally in relation to the objective seriousness of the offences, the defendants submit that, by reason of the offence against s 91G(2) of the WM Act being a “status offence” (by analogy with Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley [2009] NSWLEC 124 at [1]), meaning that the defendants are guilty merely by virtue of their status as approval holders, the actual nature of the offence, the basis upon which the defendants are liable, and their state of mind in committing the offences, are important considerations in sentencing.
  3. As noted above at [50] in relation to ‘state of mind’, the defendants submit that it could not be said that either of them deliberately or otherwise intended to commit the offence and that this fact substantially reduces the objective seriousness of the offending. Moreover, the defendants submit that the gravamen of the offending was the “mistiming in the take of water”, and that they were unaware of the 4894 Term such that neither intended to breach the terms of the Approval.
  4. Finally, the defendants submit that in circumstances where they were not aware of the condition which they contravened in the Approval, they cannot be found to have intentionally committed the offences. In this regard, the defendants again point to Peter Harris’ evidence that at the time he purchased Beemery Farm (along with the Approval) in 2014 from Clyde Agriculture, and since that time, an experienced employee (formerly employed by Clyde Agriculture) continued to work at Beemery Farm and that the defendants relied upon that person’s skills and expertise including to manage the take of water as permitted at Beemery Farm. The defendants maintain that Peter Harris was not aware of the existence of the 4894 Term in circumstances where he deposed that at the time Beemery Farm (and the Water Access Licence) was purchased, he understood that the take of water at Beemery Farm under the Water Access Licence was governed by “B Class” conditions and was unaware of the essence of the 4894 Term of that licence. Similarly, Jane Harris deposed that she was unaware there had been anything other than a “B Class approval” in place.
  5. In the circumstances, the defendants submit that their “error” (or “mistake of law”) is not irrelevant to sentence in that it has a bearing upon the reasonableness of the belief held by the defendants at the relevant time. While accepting that such a mistake of law is not exculpatory, the defendants submit that it is a mitigating factor that must be taken into account.
  6. I do not accept that the authority cited by the defendants for that proposition (Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30 (‘Ostrowski’) at [2]) suggested that a mistake of law constitutes a mitigating factor that must be taken into account. What was being considered (at [2] of Ostrowski), was that the potential for mitigation by reason of a “mistake” was due to the law’s concern that “information as to the content of the law should be readily accessible to the public”. The conduct for which the defendants in these proceedings are answerable does not fall within the scope of a “mistake” that was being considered in Ostrowski.
  7. The defendants assert that they did not know that the Approval contained the 4894 Term, and that such ignorance is a function of an “anomaly” (defendants’ submissions at (34)) resulting from a “C Class” condition being improperly applied to their “B Class” licence. I consider that this submission, as noted by the prosecutor, comes close to traversing the Court's finding in relation to the 4894 Term as an applicable term of the Approval.
  8. To explain their conduct, the defendants submit that, as was illustrated by the extensive and complicated expert evidence given at the liability hearing, it was “exceedingly difficult for an approval holder to know what actual flow rates applied at any particular time”. Again, I do not accept this submission as some form of mitigation in circumstances where the expert evidence at the trial was complex primarily because, as submitted by the prosecutor, the defendants challenged the underlying accuracy of the methods by which the river flow was calculated and it was therefore necessary for the prosecutor to demonstrate how the flow rates were calculated using a combination of real-time data and comparative data built up over many decades to arrive at a flow rate calculation that was within scientifically acceptable tolerances.
  9. In any event, I find these matters are not persuasive and certainly not determinative in any matter relevant to the sentencing hearing.
  10. I do not consider that “mistiming” is some trivial circumstance where the purpose of the provision contravened by the defendants is to ensure that water is taken at an appropriate time.
  11. Moreover, while I accept that an offence against s 91G(2) of the WM Act may be characterised as a “status offence”, I repeat my finding that the essence of the offence the subject of these proceedings is the taking of water at a time when it was not permitted. In circumstances where the offence provision is only concerned with a person’s status as an approval holder, irrespective of the level of involvement in the commission of the offence, I do not accept the defendants’ submission that merely being the holders of the Approval has any significant bearing on their moral culpability.
  12. I therefore do not consider the fact of the offence being a “status offence” to be materially important in assessing the defendants’ moral culpability or in determining the objective seriousness of the offences.
  13. I am conscious that the Court must consider the culpability of each defendant and what could reasonably have been done by them. There is a difference in the level of moral culpability between the defendants, given Peter Harris’ background, experience, and control over the farming activities and Jane Harris’ lack thereof. This finding increases the objective seriousness of his offending. However, while I take this into account, I consider that holding a licence and being involved in the management of a business, even if only formally, comes with responsibility such that any difference in the defendants’ moral culpability is minor.

Environmental harm (s 364A(1)(c) of the WM Act)

  1. The extent of harm caused, or likely to be caused, to the environment by the commission of the offence is relevant to the objective seriousness and a matter to be considered under s 364A(1)(c) of the WM Act. The absence of harm is a mitigating factor under s 21A(3)(a) of the Sentencing Act.
  2. In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 (‘Waste Recycling’) at [145] Preston CJ of LEC, stated that environmental harm includes both actual and potential harm.
  3. In the present circumstances, there is no evidence that the offending caused actual environmental harm. While the prosecutor does not submit that environmental harm is an aggravating factor under s 21A(2)(g) of the Sentencing Act, as noted above, the prosecutor contends that failing to comply with extraction restrictions of the Approval is a matter that posed potential and significant risk of environmental harm occurring.
  4. As I have found above, the defendants’ failure to comply with the conditions of the Approval undermined the objects of the statutory scheme established under the WM Act as well as public confidence in the integrity of the scheme, which has impeded the achievement of the objects of the WM Act: Environment Protection Authority v MA Roche Group Pty Ltd [2015] NSWLEC 29 at [23]. I nevertheless take into account that there has been no actual environmental harm.

Impact of the offence on other persons’ rights (s 364A(1)(a) of the WM Act)

  1. Section 364A(1)(a) of the WM Act requires the Court, in imposing a penalty on a person for an offence against the WM Act, to take into consideration “the impact of the offence on other persons’ rights under this Act”. There is no evidence that any other person had specific rights in relation to the water the subject of these offences or that the offences had any impact on any persons’ rights under the WM Act. As such, this factor is not relevant in sentencing the defendants.

Foreseeability of harm and practical measures to prevent harm/control over causes (s 364A(1)(d), (e) and (f) of the WM Act)

  1. The availability of practical measures that may be taken to prevent, control, abate or mitigate the harm caused or likely to be caused to the environment by the commission of the offence as well as control over the causes that gave rise to the offence are relevant to the objective seriousness of the offence committed by each defendant: s 364A(1)(d) and (f) of the WM Act.
  2. Jane Harris deposed that she was not involved in the extraction of water for the purposes of the irrigation farming business to which the Approval applied. As this evidence is unchallenged, I find that it tends to mitigate, although not excuse, her offending. Despite this finding, as an approval holder, she should have been aware, or made enquiries such as taking steps to ascertain or otherwise familiarise herself with, the conditions of the Approval.
  3. In relation to whether they had “control over the causes that gave rise to the offence”, the defendants submit that they were out of the country on the days the offences occurred and relied upon skilled employees who had experience at Beemery Farm (before it was purchased by the defendants), such that they did not have a “direct control” over the take of water. Further, Jane Harris maintains that she had no management control over the property.
  4. I find that Peter Harris was the person who determined to purchase Beemery Farm (and with it the associated approvals) and, as the prosecutor submits, I accept that it was Peter Harris who “turned his mind to the nature of water rights benefiting Beemery Farm when purchased” (as part of a larger transaction involving other land with a purchase price of over $40m) by the defendants and I further find that the evidence (particularly Peter Harris’ SMS text messages with his son, Jack Harris, who was contemplating pumping in the days immediately prior to the offending period) shows that he was aware of, if not actively monitoring, the water levels at Beemery Farm in the days immediately prior to the offending conduct.
  5. In light of Peter Harris’ managerial role at Beemery Farm, his capacity as a holder of the Approval, and his active involvement in monitoring the waters levels in the days preceding the offending, I find that there were practical measures he could have availed himself of to prevent, control, abate or mitigate the potential environmental harm that could have been caused by the offence. As noted elsewhere, such measures include ascertaining and understanding the terms of the Approval he holds and enforcing ongoing and strict compliance with such terms.
  6. In the above circumstances, I find beyond reasonable doubt that Peter Harris had effective control over the extraction of water at Beemery Farm in both his capacity as the ultimate source of authority within the conduct of the farming enterprise to direct whether or not extraction should occur, and as a holder of the Approval. I do not make this finding in relation to Jane Harris.
  7. I further note, in relation to s 364A(1)(e) of the WM Act, Peter Harris’ extensive experience as an irrigation farmer, and both his and Jane Harris’ responsibilities as holders of the Approval and of multiple other water access licences. Holding a licence necessarily entails understanding that the water subject to the licence is protected on environmental grounds. On this basis, I find that it was reasonably foreseeable to both defendants that the offences they committed were likely to cause harm to the environment. Be that as it may, in circumstances where the parties did not make submissions in relation to s 364A(1)(e) and where the harm against the environment remains hypothetical, I do not give such finding significant weight in my consideration of the appropriate sentences to be imposed.

Market value of water (s 364A(1)(b) of the WM Act) and financial gain (s 21A(2)(o) of the Sentencing Act)

  1. The criminality involved in the commission of an offence is measured not solely by the seriousness of what actually occurred but also by the reference to the reasons for its occurrence, and an offence committed for financial gain is objectively more serious than one which is not. The commission of an offence for financial gain is an aggravating circumstance that the prosecutor must prove beyond reasonable doubt.
  2. The prosecutor submits that the offences were committed for financial gain, and that this is an aggravating factor under s 21A(2)(o) of the Sentencing Act. The prosecutor submits that the irrigation farming businesses which the defendants operated are significant commercial enterprises and that Beemery Farm is part of a large farming business enterprise comprising four farming properties acquired by the defendants (or entities controlled by them) in the Bourke region of north-west NSW and that the cotton operations carried on by the defendants represent a “major source of profit”, which were heavily impacted by drought conditions between 2001 and 2008. In light of the defendants’ significant cotton growing business, the prosecutor submits that the extraction of water from the Barwon River at Beemery Farm is clearly a matter of great financial importance to the defendants such that the Court would be comfortably satisfied that the unlawful extraction of water by the defendants during the charge period was conduct engaged in for financial gain.
  3. The defendants submit that there is no evidence of any financial motive for the commission of the offences, other than the fact that the defendants were involved in a commercial enterprise and that the offending occurred in that context. The defendants further submit that the water could have been taken permissibly on later days (after the offending period) and, therefore, that the offending conduct did not benefit their businesses.
  4. In relation to the market value of the water that has been unlawfully taken (in relation to s 364A(1)(b) of the WM Act), the prosecutor relied on the evidence of Mr Cocks who deposed that the market price for water transfers during the 2016/2017 water reporting year was $23.11 per ML. Applying this “value” to the volume of water extracted at Beemery Farm during the offending (being 1,896.17 ML) provides a value for the water unlawfully taken of approximately $44,000. I do not consider this evidence to be particularly material in circumstances where the water taken was not otherwise in excess of the defendants’ volumetric entitlements, remembering of course, that a large volume of water (1.9 billion litres) was taken when extraction was forbidden.
  5. Accepting the defendants’ submissions, and conscious that a large volume of water was extracted unlawfully, I find that there is no evidence that establishes beyond reasonable doubt that either defendant committed the offence for financial gain.

Conclusion on objective seriousness

  1. I find that there is clearly a need for the upholding of the regulatory system under the WM Act, that offences which undermine the integrity of the regulatory system are objectively serious and, as considered in Perdikaris at [47], that the use of the criminal law ensures the credibility of the regulatory system.
  2. Further, I find that an offence against s 91G(2) of the WM Act subverts the objectives of the statutory water management regime and frustrates the attainment of the objects of the WM Act. I consider that the water management system under the WM Act depends on persons complying with the regulatory scheme and abiding by the conditions of their licences and approvals when accessing water, and adherence with the statutory regime is the price payable for the taking of an increasingly scarce resource in a manner that is environmentally and socially sustainable: Natural Resources Access Regulator v Tony Thompson [2022] NSWLEC 48 (‘Thompson’) at [85] (per Pepper J).
  3. Although specific characterisation of objective seriousness is not a necessary component of the sentencing task because it “...is rarely definitive of that part of the sentencing exercise that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender”, it is still a useful descriptor in the instinctive synthesis exercise: R v DP [2019] NSWCCA 55 at [42] (per Fullerton J).
  4. Considering all the objective circumstances of the offence against s 91G(2) of the WM Act, and bearing in mind that there are differences between the offending of Peter Harris and Jane Harris, as considered above, I find that the offence as committed by each of the defendants is in the low range of objective seriousness for offences of this kind.

Subjective circumstances

  1. Within the limits set by the objective seriousness of the offence, the Court must take into account the favourable factors personal to the defendants when determining the appropriate penalty to impose on each of them. In this part, I remain conscious that there are two separate cases for sentencing before the Court.

Lack of prior convictions (s 21A(3)(e) of the Sentencing Act)

  1. It is a mitigating factor pursuant to s 21A(3)(e) of the Sentencing Act that neither defendant has any prior convictions.
  2. The defendants submit that their lack of prior convictions is relevant to other mitigating matters under s 21A(3) of the Sentencing Act including their prior good character (21A(3)(f)); the unlikelihood of their reoffending (21A(3)(g)); and their prospects of rehabilitation (21A(3)(h)).

Previous good character (s 21A(3)(f) of the Sentencing Act)

  1. The prosecutor accepts that Jane Harris was not directly involved in the irrigation farming business and is otherwise a person of previous good character.
  2. In relation to Peter Harris, the prosecutor submits that while he does not have any previous convictions, he was the person who made the decision to purchase Beemery Farm which he operated for a little over two years before the offending occurred. The prosecutor again submits that the Court would not accept his assertion that at the time of his offence he was not aware of the 4894 Term (as applying to the Approval) and that he should therefore not be regarded as a person of good character for the purpose of the sentencing exercise.
  3. Further, despite each defendant deposing to “substantial contributions ... to charities and community groups in the Barwon-Darling Region”, the prosecutor submits that there is little detail in their affidavits as to the nature, extent and amount of such contributions apart from naming a range of community groups and sports organisations.
  4. Despite the defendants’ submissions, I note that neither defendant provided character references or other objective material as to their good character.
  5. In relation to Jane Harris, I am satisfied to the extent necessary that she exhibited prior good character. In relation to Peter Harris, subject to matters below, and while I have some concerns in relation to his continued reliance in these sentencing proceedings on an alleged “anomaly” in the conditions of the Approval, I find that he is otherwise of good character.

Prospects of rehabilitation (s 21A(3)(h) of the Sentencing Act)

  1. In relation to prospects of rehabilitation, each defendant submits that there has been a material change in the way that water flow rates are now dealt with in NSW and that the Court will have been aware (given the extensive and complicated expert evidence given at the liability hearing) that it had been prior to such change “exceedingly difficult for an approval holder to know when actual water flows applied at any particular time”.
  2. The prosecutor rejects these submissions and reminds the Court that the expert evidence at the liability hearing was complex because the defendants challenged the underlying accuracy of the methods by which the river flow was calculated and it was therefore necessary to demonstrate to the Court how the flow rates were calculated using a combination of real-time data and comparative data built up over many decades to arrive at a flow rate calculation that was within scientifically acceptable tolerances.
  3. I am aware that, at the liability hearing, there was extensive evidence in relation to flow rate calculations and that proof of the veracity of the primary data was complex. In the circumstances, although the prosecutor submits that the expert evidence was complex primarily because the defendants challenged the accuracy of the methods used and the like, I do not consider that this is a determinative matter in sentencing except, as considered below, in relation to consideration of the assistance offered by the defendants as to be considered in s 21A(3)(m) of the Sentencing Act.
  4. I find that, in relation to each defendant, there are good prospects of rehabilitation.

Likelihood of reoffending (s 21A(3)(g) of the Sentencing Act)

  1. The defendants submit that they have not breached any law since the offending the subject of these proceedings, and that this demonstrates that they are unlikely to reoffend. In addition, the defendants deposed to having implemented mechanisms to prevent any repetition of offending in the future, including by hiring Mark Adams, a senior staff member in charge of ensuring compliance with the WM Act. This is compounded, in their submissions, by recent changes in the way flow rates are promulgated in NSW which now permit approval holders to work out with more certainty whether pumping is permissible and that this should “bolster the Court’s confidence that no such contraventions will occur” in the future.
  2. The prosecutor submits that the defendants have failed to adequately demonstrate that they are unlikely to offend again, and that they should therefore not be entitled to leniency on this basis. In relation to the alleged practical measures taken by the defendants to prevent future offending, the prosecutor submits that aside from continuing to employ an existing staff member to ensure compliance with the WM Act, no evidence of the adoption or implementation of any system to ensure such compliance was provided to the Court. In circumstances where Mr Adams was already in a senior position at Beemery Farm at the time of the offending and has not shown any proven qualification to ensure compliance with the WM Act, the prosecutor submits that there is no assurance before the Court that measures have been taken to prevent reoffending.
  3. In relation to Peter Harris, the prosecutor again points to his failure to take responsibility for his conduct, whether at the liability hearing or during these sentencing proceedings and submits that such attitude ought to cause concern in that he may well reoffend.
  4. In relation to Jane Harris, the prosecutor submits that, in circumstances where she has no active role with respect to her businesses’ water extraction operations, future reoffending may not be fully within her control.
  5. I am not convinced, having regard to the lack of evidence before me concerning the implementation of tangible systems for ensuring compliance with the WM Act and the defendants’ substantial involvement in irrigation farming through their businesses, that they have shown their unlikelihood to reoffend. I also find that there is some strength in the submission that preventing reoffending may be beyond Jane Harris’ reach. Be that as it may, I take into account for the purposes of this sentencing exercise each defendants’ submission that they have not reoffended since the offence the subject of these proceedings and their submission, noted later, in relation to the delay in the finalisation of these proceedings.

Remorse (s 21A(3)(i) of the Sentencing Act)

  1. Pursuant to s 21A(3)(i) of the Sentencing Act, remorse will only be a mitigating factor 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)”

  1. The prosecutor submits that Jane Harris offers a “bare” statement that she is “genuinely sorry that the offending occurred”, yet she accepts no responsibility for the offending having expressly indicated that she had no responsibility for the decision to pump water and expresses concern in relation to the “delay” in the resolution of these proceedings.
  2. The prosecutor submits that Peter Harris, while stating that he had no intention of breaching the 4894 Term as he was not aware of it, takes no responsibility for the offending conduct. Further, his offer of a “bare” statement of contrition demonstrates he has no insight into the nature of the offending nor genuine contrition.
  3. In the above circumstances, the prosecutor submits that neither defendant is entitled to mitigation of their sentence by reason of asserted remorse. Further, the prosecutor submits that the defendants’ disclaiming any real responsibility for the offending while claiming to be remorseful (and rehabilitated) is disingenuous.
  4. The defendants deposed to their remorse and contrition in their respective affidavits. The defendants also deposed to measures taken since the time of the offence to improve the regulatory compliance by the hiring of staff to engage in this aspect of the business which in their submission demonstrates that contrition is genuinely held and that there is a desire to prevent further offending.
  5. As an expression of their remorse, the defendants also rely on their conduct in the course of these proceedings. While accepting that they did not plead guilty (and noting that they are not to be punished for not pleading guilty), the defendants submit that they did not challenge large parts of the prosecution case and did not dispute many of the facts necessary to found the convictions, with the hearing on liability largely confined to the admissibility and correctness of technical evidence that was used to calculate the relevant flow rates at the time of the offence. They further point to their effort in providing information and documents to the prosecution in circumstances where they could have (as they were advised) objected to giving certain information. Finally, the defendants submit that they have assisted the law enforcement authorities in these sentencing proceedings by agreeing to certain facts on sentencing.
  6. In light of their willingness to facilitate the course of justice, the defendants submit that the Court is not precluded from finding that they demonstrated the required level of remorse and contrition.
  7. I have concerns in relation to the manner in which the defendants have expressed what they consider to be “remorse” and I find (in particular, in relation to Peter Harris) that they have not demonstrated any insight into the nature of their offending nor shown genuine contrition. Moreover, I am not comfortable with the submission (and, as considered below, do not find) that there has been material assistance to the prosecutor.
  8. While I note that there is no bright line that demonstrates the limits of remorse, and that it will always be a matter of degree, remorse is nevertheless only available as a mitigating factor under s 21A(3)(i) of the Sentencing Act if the pre-conditions in the section are met. In light of my finding above, I do not consider that remorse has been established to the necessary standard by either defendant. Be that as it may, the expressions of remorse are interwoven in my considerations of good prospects of rehabilitation and unlikelihood to reoffend and to that extent only, I take account of the respondents’ submissions.

Assistance to the law enforcement authorities (s 21A(3)(m) of the Sentencing Act)

  1. Although considered earlier in this judgment, albeit in relation to different sentencing considerations, I summarise for clarity in this section the parties’ positions in relation to assistance to law enforcement authorities (pursuant to s 21A(3)(m) of the Sentencing Act).
  2. In their respective affidavits, each defendant deposed to the assistance provided to the prosecutor when complying with notices issued to them under s 338A of the WM Act. They further submit that, despite not pleading guilty, they did not dispute many of the facts necessary to found convictions and in this regard, point to references to facts agreed to during the hearing on liability in WaterNSW v Harris (No 3). The defendants contend that they have also assisted law enforcement authorities in these sentencing proceedings by way of an agreed statement of facts filed for the purpose of the sentencing exercise.
  3. The prosecutor disputes these submissions and submits that, during the liability hearing, the defendants put the prosecutor to proof on every fact alleged against them. In relation to the asserted references to the agreed facts in WaterNSW v Harris (No 3), the prosecutor submits that the only facts to which the defendants agreed went to “historical states of affairs” and were, in any event, only relevant because the defendants challenged the fact of the 4894 Term forming a condition of the Approval. Accordingly, the prosecutor submits that neither defendant should be entitled to mitigation of their sentence by reason of any alleged assistance to law enforcement authorities.
  4. Having considered the defendants’ conduct in these proceedings and bearing in mind their efforts in producing a limited statement of agreed facts, I repeat my findings at [113], and I am not satisfied to the extent necessary, that there has been material assistance to the prosecutor. In these circumstances, I do not accept that either defendant is entitled to leniency by reason of any alleged assistance to the law enforcement authorities.

Deterrence

General deterrence

  1. General deterrence is particularly important in sentencing for environmental offences. This is particularly so to ensure that water users, especially those involved in significant water-using enterprises, act in accordance with water access licences and water use approvals. The sentences imposed by the Court should be such as to ensure that the penalties are not to be regarded by either of the defendants (or others) as an acceptable cost of doing business. Embedded in the determination of the appropriate sentence for each defendant must therefore be an element of general deterrence to ensure that conduct in relation to adherence to conditions of approvals is such that contravention of environmental law is discouraged.

Specific deterrence

  1. The prosecutor, relying upon the facts that each defendant put to the prosecution to proof on almost every alleged fact at the liability hearing, and that the defendants in these sentencing proceedings seek to diminish the Court’s finding of guilt for the offences for which they have been convicted, submits that specific deterrence is important. The prosecutor points to the example of the “bare” statement of agreed facts to which the defendants contributed and again submits that the defendants have not shown any insight into their offending or genuine remorse such that the Court could not be completely satisfied that they will not reoffend and that specific deterrence is not required.
  2. While the defendants’ lack of prior convictions reduces somewhat the need for specific deterrence, in circumstances where the offending conduct was associated with extensive, ongoing farming and water-related activities in which the defendants continue to participate, I find that in relation to each defendant an element of specific deterrence is warranted.

Delay

  1. The defendants submit that there has been significant delay in circumstances where the offences were committed in 2016, proceedings were not commenced until 7 March 2018, and there were a significant number of Court mentions as well as an initial vacation of a trial date on the prosecutor’s motion. Regardless of the reasons for the delay, the defendants submit that an offender’s state of uncertain suspense can entitle it to an added element of leniency, as well as aid certainty about an offender’s prospects of rehabilitation.
  2. The prosecutor submits that the proceedings were commenced “within time” and that any delay since the hearing on liability has been the result of the Court going through the exercise of adjudicating each of the discrete challenges to the prosecutor’s case, the defendants’ appeal to the Court of Criminal Appeal and application for special leave to appeal to the High Court.
  3. I accept that delay is a factor which can be taken into account, however, I find that in the present circumstances it is of minor significance except to the extent that it allows for some consideration of what may be considered demonstrated rehabilitation which requires some level of leniency, and I take this into account.

Capacity to pay a fine

  1. In exercising my discretion to fix the amount of a fine, I am required by s 6 of the Fines Act 1996 (NSW) to consider any such information regarding the means of each defendant as is reasonably and practicably available to the Court as well as any other matter that is relevant to the fixing of that amount.
  2. The defendants did not submit that they lack the means to pay a financial penalty, and accordingly, I am unable to make any finding that the penalties to be imposed on each of them should be mitigated in any way on the basis of their respective financial circumstances.

Publication order

  1. The prosecutor seeks an order pursuant to s 353G(1)(a) of the WM Act that the defendants (at their own expense) publicise the commission of the offences, the circumstances thereof, and the orders made against them by causing a notice to be published in each of the following four publications: The Land, The Weekly Times, the Western Herald, and the Daily Liberal.
  2. The defendants submit in light of the extensive media reporting on the liability proceedings, and the likely coverage of these sentencing proceedings, there is no need to publicise the offences or the circumstances of the offences to ensure general deterrence. In addition, the defendants deposed in their respective affidavits to the negative impact on their “integrity and on [their] family businesses” of the “public shaming” that they have been subjected to in the media. On this basis, they submit that it is not appropriate for a publication order to be made.
  3. If the Court does not accept this submission, the defendants submit that a more circumscribed order which does not identify them would fulfill the requirements of the statute. The defendants also submit that the prosecutor has not established why the particular publications chosen have been selected.
  4. The publication of information relating to environmental offences and their repercussions is relevant to sentencing as it enhances public perception and improves the effectiveness of a sentence as a deterrent: Budvalt at [58]-[59]. The principles relevant to the imposition of publication orders were collected by Duggan J in Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 at [84].
  5. Although the defendants complained that they have been subject to “extra-curial punishment” in the form of allegedly inaccurate reporting of the proceedings, I accept the prosecutor’s submission that there is no compelling evidence of any such reporting and that no media reports have been put before the Court. Keeping this in mind, and considering all the objective and subjective circumstances noted above, and my further consideration of matters specifically relating to Jane Harris, I find that it is appropriate for a publication order to be made, and that the publication be in the form of appendix A to this judgment, generally reflecting the wording suggested by the prosecutor, the Court’s findings and the sentences imposed, but without naming the defendants, which I consider addresses the defendants’ concern in relation to the media reporting to which they have been subjected.

Costs

  1. The prosecutor seeks an order for payment of its professional costs under s 257B of the Criminal Procedure Act 1986 (NSW) and submits that payment of the prosecutor’s costs is a common aspect of sentencing for Class 5 proceedings and is embedded in the general pattern of sentencing for all offences.
  2. The defendants have agreed to pay the prosecutor’s costs in the amount of $448,260.50 (plus additional costs incurred since 1 June 2022). I have considered the defendants’ agreement to pay costs in my consideration of an appropriate penalty to impose on each of them.

Submissions in relation to Jane Harris

  1. The defendants submit that there are differences between their subjective cases and their individual roles and responsibilities for the commission of the offence. Jane Harris submits that, in contrast to Peter Harris, she did not have any role in the management of, or control over, the take of water at Beemery Farm whether at the time of the offending or generally, such that the Court should dispose of her matter pursuant to s 10 of the Sentencing Act without recording a conviction. In support of this position, Jane Harris points to the fact that she is a person of good character, aged in her 50s with no prior or subsequent criminal history. Jane Harris further submits that the circumstances in which the offence was committed, namely her minimal role in the causing of the offending and her absence of responsibility for management of the water, otherwise addresses matters for consideration in s 10(3)(c) of the Sentencing Act.
  2. The prosecutor opposes such order and submits that, in any event, s 10 of the Sentencing Act cannot have any application to the present circumstances as the Court has already “proceeded to conviction” in the findings made in WaterNSW v Harris (No 3) where the orders of the Court were entered as follows:
“(1) Jane Maree Harris is convicted of the offence against s 91G(2) of the Water Management Act 2000 (NSW) as charged.

(2) Proceedings are stood over to a date to be fixed for submissions on penalty.”

  1. Apart from this primary disentitling fact, the prosecutor further submits that no application was made at any time for the Court to reconsider entering convictions against each defendant at the trial, and that those convictions survived an appeal to the Court of Criminal Appeal, and an application for leave to appeal to the High Court, in circumstances where it has never been suggested (prior to the service of the defendants’ written submissions in these sentencing proceedings) that this case was one in which a conviction ought not to be recorded in respect of either defendant. Despite this determinative position, the prosecutor submits that the Court would not, in any event, consider that s 10 was appropriate given the circumstances of Jane Harris’ offending and the fact that she was found guilty after a five-day fully contested hearing.
  2. Before considering these submissions, it is appropriate to note that ss 10(1)(a) and 10(3) of the Sentencing Act provide:
10 Dismissal of charges and conditional discharge of offender
(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders—
(a) an order directing that the relevant charge be dismissed,
...
(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors—
(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.
...
  1. The legal principles concerning the application of s 10(1)(a) of the Sentencing Act have been noted by Pepper J in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26 as follows:
“[627] The factors in s 10(3) are all but mandatory considerations. In Hoffenberg v The District Court of New South Wales [2010] NSWCA 142, Basten JA relevantly described the structure of s 10 as follows (at [8] and [10]-[11]):
[8] ... Section 10 is relevantly broken into three parts, the first conferring a power to make an order of a particular kind; the second prescribing that the order “may be made” if the court is satisfied of certain matters, although not stating that the court must be so satisfied to make such an order, and the third identifying factors which, in considering whether to make such an order, the court “is to have regard to”. While the logic of the new structure is apparent, its effect is obscured.
...
[10] Further, to say that a court “is to have regard to” certain factors (see sub-s (3)), suggests that these are mandatory considerations. However, they are really conclusions reached by the court in the course of its considerations. As is clear from s 4 of the South Australian Act, a critical question for the court may be whether the nature of the offence can properly be described as “trivial” and whether the circumstances in which it was committed were in fact “extenuating circumstances”. Properly understood, the court is not to “have regard to” those factors, but to determine whether those factors exist. Finally, it seems that these are not in truth mandatory considerations, because par (d) includes “any other matter that the court thinks proper to consider”. It is not meaningful to make that a mandatory consideration. Again, the purpose is to ensure the court considers the full range of factors it considers relevant.
[11] Despite its form, s 10 should be understood as having the same general effect as s 4 of the South Australian Act. That is, it will not be expedient for the Court to release a person guilty of an offence without proceeding to conviction unless one or more of the factors set out in sub-s (3)(a), (b) or (c) is satisfied or there are other circumstances, not clearly fitting within those characteristics, which would justify such a course. Thus, a court now has a broader discretionary power than in the past; relevantly for the question of jurisdictional error, there is no statement of impermissible considerations.
[628] The factors to which the Court “is to have regard to” are not exhaustive (R v Paris [2001] NSWCCA 83 (‘Paris’) at [42]) and are considered to be disjunctive in their operation (Paris at [42]). That is, it is not necessary for all of the factors contained in s 10(3) to be present before the Court can exercise its discretion to make an order.

[629] An order under s 10(1) generally applies to offences that are considered to be trivial in nature, however, the converse is equally true: R v Piccin (No 2) [2001] NSWCCA 323 at [25]; Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312 at [38]; Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [114].

[630] An order under s 10 (or its former statutory incarnation, s 556A of the Crimes Act 1900 (NSW)) is usually "rare" in the case of environmental offences, including offences concerning a breach of planning laws (Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22 at 23; Environment Protection Authority v Attard [2000] NSWCCA 242 at [5]; Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 at [165]- [169]; Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; 122 LGERA 89 at [35]; Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 at [24]; [Holroyd City Council v El-Khouri [2008] NSWLEC 83] at [34]; and Terrey at [109]).

[631] Nonetheless, the environmental and planning characterisation of the offence is no bar to the application of s 10(1) of the CSPA (El-Khouri at [34]; Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 at [47]- [51]; and Parramatta City Council v Cheng [2010] NSWLEC 94 at [41]- [45]).

[632] Having said this, the circumstances in which a s 10(1) order is appropriate are considered to be limited where the environmental offence is one of strict liability (Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [70]- [71] and Terrey at [110]).

[633] But the fact that the offences in question are of strict liability does not preclude an order being made under s 10 of the CSPA (Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88 at [139]; Thorneloe at [171]; Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 at [149]- [153]; Lavorato v The Queen [2012] NSWCCA 61; (2012) 82 NSWLR 568 at [126]).”

Availability of an order under s 10 of the Sentencing Act

  1. In relation to the parties’ submissions concerning the availability of s 10 in the present circumstances, for the reasons that follow, I find that the orders made and entered 19 March 2020 in relation to Jane Harris, despite the use of the word “convicted”, effectively constituted a determination that the elements of the offence charged had been established on the basis of the evidence, and that Jane Harris was accordingly guilty of the offence.
  2. As such, I consider that the determination did not constitute a conviction in the sense of a final disposition of the proceedings and that, but for my finding for reasons given later in this judgment that the circumstances concerning Jane Harris’ offending are not appropriate for an order pursuant to s 10, I consider that it would have been open to this Court to consider and make an order pursuant to s 10 if it had otherwise been so inclined.
  3. Simply stated, the question is whether or not the orders made by this Court in the course of the proceedings on 19 March 2020 constituted a “conviction” within the meaning of the Sentencing Act.
  4. In Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46, Dawson J and McHugh J (Toohey J dissenting) considered the breadth of the term “conviction”, and the contextual analysis to be applied in determining the meaning of the term in any given context and stated, at 507:
“The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence.” (emphasis added).
  1. Their Honours relevantly went on to state, at 509:
“A matter may be disposed of otherwise than by sentence, but an adjournment of proceedings or the remand of a prisoner for sentence does not ordinarily amount to the disposal of a matter. It is difficult to envisage when either of those courses would constitute a final determination and so amount to a conviction.”
  1. Similarly, in Kinney v Green (1992) 29 NSWLR 137 at 139, Carruthers J observed the ambiguous nature of the expression “conviction” and held that “it is clear from the relevant authorities that “conviction” may mean a determination that the offence has been proved or it may mean a final adjudication of guilt.” Endorsing Davidson J’s comments in Re Stubbs [1947] NSWStRp 12; (1947) 47 SR (NSW) 329 at 335, his Honour conceded that the only guidance for interpreting the expression “conviction” is found in the terms of the relevant statute.
  2. These and other authorities were considered by Hall J in Keys v West (2006) 65 NSWLR 668; [2006] NSWSC 136 where his Honour concluded, albeit in relation to a different statutory context, that the word “conviction” is to be given a narrow rather than a broad meaning so as to amount only to an order or finding that the offence charge was proved.
  3. Adopting this reasoning, I consider that the orders made in March 2020 does not constitute a “conviction” for the purposes of s 10 of the Sentencing Act. A final determination, traditionally by way of sentencing, would be required for a finding of guilt to amount to a “conviction”. Referring to the relevant statute, the charge in question under the WM Act is that a person is “guilty of an offence” if they are found to have contravened any term or condition of an approval. It follows that the order, whilst adopting the language that the defendants are “convicted” of the offence as charged, is effectively a finding that they are “guilty of an offence” under the WM Act and does not constitute a final determination or “conviction” within the meaning of the Sentencing Act. A contrary construction would stymie the obvious purpose of s 10 of the Sentencing Act.

Appropriateness of an order under s 10 of the Sentencing Act

  1. While I do not consider that the fact that the word “conviction” was part of (and recorded in) my earlier findings and orders would itself be a bar to further consideration of an order under s 10 (in relation to Jane Harris) at a subsequent sentence hearing, I consider it inappropriate that an order pursuant to s 10 be made in relation to Jane Harris’ position for the following reasons.
  2. First, I do not consider that the offence for which she has been found guilty (after a five-day fully contested hearing) is in any way trivial (accepting that triviality on its own would not be a bar), and while not repeating my findings above, it is trite that compliance with conditions of licences and approvals is essential to provide for the sustained and integrated management of water sources in NSW. Further, while I found Jane Harris to be of previous good character, as considered above, she has not demonstrated remorse to the necessary standard.
  3. Secondly, the crime is one of strict liability for which there is a significant maximum penalty – albeit accepting that the maximum penalty is a “sentencing yardstick”, as I have noted above. While accepting that the present crime, as committed by both defendants, is not towards the higher end of the spectrum of seriousness, it is nevertheless objectively serious, and not without some real significance.
  4. Thirdly, the nature of a strict liability offence is a public expression by Parliament of the seriousness of the offence. Even accepting that it is a “status offence”, it illustrates a public concern for ensuring that holders of licences which have environmental implications should take all care that the harm the statute is seeking to prevent does not occur as a result of their actions or inactions, and that they are aware of their obligations. Further, I consider that there remains a consideration, as I have indicated above, of both general and specific deterrence and denunciation.
  5. Fourthly, I do not consider that the lesser role played by Jane Harris in the management of Beemery Farm and in the decision to take water on the occasion the subject of the offence is an “extenuating” factor in circumstances where Jane Harris is (and remains) an approval holder, has acquired such approvals through the purchase of businesses (involving farming enterprises that use significant amounts of water) for in excess of $40m, and where such businesses operate within a large and properly regulated industry. Endorsing a managerial role in a large business, and holding a relevant approval necessarily entail a degree of responsibility which cannot be abrogated by a decision to take on a “far lesser role” in practice. In this regard, I find again that characterisation of s 91G(2) of the WM Act as a “status offence” does not assist Jane Harris, as it merely indicates Parliament’s intent to ensure that approval holders, whether or not actively involved in the business to which a licence may be attached, enforce compliance with the relevant conditions.
  6. Fifthly, I am mindful of the repeated statements of this and other courts which emphasise that there must be reasonable proportionality between any sentence imposed and the objective gravity of the offending, and that an offender’s subjective case, no matter how powerful, must not be permitted to result in a sentencing outcome which fails to reflect such gravity: Edwards v The Queen [2021] NSWCCA 57 at [65] per Bellew J (Payne JA and Button J agreeing). With this in mind, I do not consider that an order that does not record a conviction (and imposes a penalty) would be a sentencing outcome that reflects the objective gravity of the offending as determined in this judgment.
  7. For these reasons, while I do not accept the prosecutor’s position that it is not open to the Court to make an order under s 10 of the Sentencing Act and, as is clear from the reasons given above, I find that in the present circumstances, it is not appropriate for the Court to exercise its discretion to dispose of the proceedings, insofar as they relate to Jane Harris, without recording a conviction pursuant to s 10 of the Sentencing Act.

Consistency in sentencing

  1. In determining the appropriate sentences to be imposed for the offences committed by the defendants, the Court, as far as practicable, should be consistent with the pattern of sentencing for like offences. The task of the Court is to seek even-handedness, accepting that there is always difficulty in comparing the penalty in one case with that in another because of the likely wide divergence of facts and circumstances in each case and accepting the trite position that a sentence imposed in one case does not demonstrate the limits of a sentencing court’s discretion. I have not been assisted in my consideration of the appropriate sentences to be imposed on the defendants by the availability of comparable sentencing matters.
  2. While the defendants directed the Court's attention to statistics prepared by the Judicial Commission of NSW in relation to three sentences imposed for offences against s 91G(2) of the WM Act dealt with by the Local Court, these references (and the statistics annexed to the defendants’ submissions) are of little assistance not the least because there was limited, if any, detail available as to the circumstances, both objective and subjective, of the offending.
  3. I have also considered a number of authorities which dealt with sentencing in relation to various differing offences against the WM Act which were recently considered by Pepper J in Henry Payson at [284]-[285] and Pritchard J in Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Robert Beltrame [2023] NSWLEC 18 at [125]- [130] (‘Beltrame’) under the rubric of consistency in sentencing, including Thompson; Barlow; and Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 (‘Budvalt’). I have not simply considered the sentences imposed but also the specific offences involved and the relevant objective and subjective circumstances that led the Court in each case (and in Henry Payson and Beltrame) to impose particular sentences.
  4. In summary, Barlow concerned pleas of guilty to two offences against s 91I(2) and one offence against s 336C(1) of the WM Act. Although the objective seriousness in Barlow was considered to be low range in relation to the s 91I(2) offences and mid-range in relation to the offence against s 336C(1), Barlow was fined $48,726, $54,140, and $86,625 respectively in circumstances where the Court found there was no evidence of harm to the environment.
  5. Budvalt concerned a plea of guilty to an offence against a contravention of s 91B(1) of the WM Act involving the construction and use of a water channel without an approval, in circumstances where the offender had no prior convictions and was considered to be of good character, and, apart from harm to the objectives of the regulatory system, there was no evidence of harm to the environment. The Court imposed a fine of $252,000.
  6. Thompson concerned a plea of guilty to offences against ss 60A(4) and 91I(2) of the WM Act involving the taking of water otherwise than authorised. Pepper J found the objective seriousness to be in the low range and found actual harm to the regulatory system and imposed fines in the sum of $37,500 and $20,000 respectively.
  7. Apart from the Court’s findings in each of these matters that harm was caused to the integrity of the regulatory system by the commission of the offences, I do not otherwise find significant assistance from those cases. In any event, in exercising the discretion to fix an appropriate sentence, each matter must be decided on its own facts and, as observed by Preston CJ of LEC in Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [72], the more appropriate yardstick against which a sentence should be compared, is the penalty set by Parliament rather than the amount of fines imposed in past cases.

The appropriate sentence for the offences

Peter Harris

  1. Synthesising all of the relevant objective and subjective circumstances of the offence and of Peter Harris as the offender, considering the relevant purposes of sentencing, and taking into account the additional orders to be imposed, I consider that the appropriate penalty to be imposed is a fine in the sum of $40,000.

Jane Harris

  1. Synthesising all of the relevant objective and subjective circumstances of the offence and of Jane Harris as the offender, considering the relevant purposes of sentencing, and taking into account the additional orders to be imposed, I consider that the appropriate penalty to be imposed is a fine in the sum of $20,000.

Moiety of fines

  1. The prosecutor seeks an order under s 122(2) of the Fines Act 1996 (NSW) that half of each fine payable by each of the defendant be paid to the prosecutor.
  2. For the reasons expressed by Preston CJ of LEC in Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241 at [102]- [111], I consider that the power in s 122(2) of the Fines Act is able to be exercised by this Court in proceedings in which a fine or other penalty is imposed for a statutory offence.
  3. In the circumstances of this case, I consider that it is appropriate to exercise that power to direct that one half of the fine imposed in relation to each defendant be paid to the prosecutor.

Orders

  1. The orders of the Court are:

In proceedings 2018/00073936:

In proceedings 2018/00073940:

In proceedings 2018/00073936 and 2018/00073940:

**********

Appendix A (98268, pdf)

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