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Local Court 15 October 2015

Environment Protection Authority v Tomingley Gold Operations Pty Ltd

[2015] NSWLC 21

Other
CRIMINAL LAW ENVIRONMENTAL OFFENCES POLLUTE WATERS PLANNING CONSENT REQUIREMENT WATER MANAGEMENT PLAN HARM TO ENVIRONMENT

Citation: Environment Protection Authority v Tomingley Gold Operations Pty Ltd [2015] NSWLC 21
Court: Local Court of New South Wales
Date: 15 October 2015
Judge(s): Stewart LCM

Background

The defendant was a gold mining company operating a mine at Tomingley, New South Wales. It held an Environment Protection Licence under the Protection of the Environment Operations Act 1997 (POEO Act) and had received Major Project Approval in July 2012, which required it to prepare and implement a Water Management Plan. Mining operations commenced in January 2014.

At the time of the two offences, the defendant had not completed construction of the Caloma Central Drain, a clean water drainage channel running through the mine property and discharging into a series of dams, one on the mine property and two on neighbouring private land. The defendant had also failed to complete the required surface water infrastructure and sediment erosion controls.

Rainfall events on 6 March 2014 and between 24 and 27 March 2014 caused sediment-laden water to discharge from the Caloma Central Drain through the drainage network and onto adjacent land. The defendant self-reported both incidents. Total Suspended Solids (TSS) in the discharge far exceeded the licence limit of 50mg/L, reaching an estimated 13,268mg/L in the first incident and between seven and eleven times background levels in the second. The EPA prosecuted the company for two counts of polluting waters under section 120(1) of the POEO Act.

  • How should the objective seriousness of each offence be assessed, including the extent of actual and foreseeable harm to the environment?
  • What weight should be given to mitigating factors, including the early guilty plea, cooperation with authorities, self-reporting, and remediation steps?
  • How should the Local Court's jurisdictional sentencing cap (maximum of $110,000 per offence) interact with the true statutory maximum of $1,000,000 applicable in the Land and Environment Court?
  • Whether a publication order was appropriate, and if so, in which publications it should appear.
  • How the totality principle should be applied when aggregating fines for two related offences, with costs also payable.

Decision

Stewart LCM entered convictions on both counts and assessed each offence by reference to the factors set out in section 241 of the POEO Act, including the extent of actual and foreseeable harm, the practical measures available to prevent it, and the defendant's degree of control over the causes. The Magistrate found that actual environmental harm had occurred: sediment was deposited on neighbouring private land and along the Newell Highway, TSS levels massively exceeded licence limits, and the EPA was required to issue a Clean-Up Notice in September 2014 to address remaining sediment deposits. The absence of dead aquatic organisms did not negate the finding of actual harm.

The defendant's failure to complete the Water Management Plan infrastructure before commencing mining operations was treated as a significant aggravating factor. The Magistrate accepted, however, that several mitigating factors applied: the plea was entered at the first available opportunity (attracting a 25% discount), the defendant self-reported both incidents, cooperated with authorities, and undertook remediation works.

On the question of the jurisdictional cap, the Magistrate applied the principle from R v Doan that the Local Court's lower maximum is a jurisdictional ceiling, not a guide to what constitutes a worst case. The court assessed penalty by reference to the true objective seriousness of each offence before applying the cap and the guilty plea discount.

Before applying the totality principle, the discounted figures were $75,000 (count 1) and $37,500 (count 2). Taking into account the agreed costs order of $15,000 plus $1,797 in investigation costs, the Magistrate reduced the fines to $60,000 and $35,000 respectively, concluding that the combined outcome reflected the total criminality involved. The Magistrate also ordered the defendant to publish a notice of conviction in three publications, rejecting the defendant's argument for limited local publication only on the basis that restricting publication would be inconsistent with the purposes of sentencing, including general deterrence and public accountability.

Orders Made

  • The defendant was convicted of both offences under section 120 of the POEO Act.
  • Count 1: fine of $60,000.
  • Count 2: fine of $35,000.
  • Publication order under section 250(1)(a) of the POEO Act requiring the defendant to place a quarter-page notice of conviction within the first five pages of the Sydney Morning Herald, Daily Liberal Dubbo, and Australian Mining Magazine within 21 days.
  • The defendant was required to provide the EPA with a copy of the published pages within 35 days.
  • The defendant was ordered to pay the prosecutor's legal costs of $15,000 (inclusive of GST) and investigation costs of $1,797.

Key Takeaways

  • The Local Court confirmed that its jurisdictional sentencing cap under the POEO Act is a ceiling on what the court may impose, not a proxy for the worst-case offence; the penalty must still reflect the true objective seriousness of the conduct before the cap is applied.
  • Actual environmental harm was established even without evidence of dead aquatic organisms: visible sediment deposits, massively elevated TSS levels, and the later need for a regulatory Clean-Up Notice were each treated as indicators of harm.
  • Under section 241 of the POEO Act, a defendant's failure to complete required Water Management Plan infrastructure before commencing operations is a relevant factor in assessing the extent to which foreseeable harm was within the defendant's control.
  • Applying the totality principle, the sentencing court reduced individual fines to ensure the aggregate of fines and costs reflected overall criminality rather than punishing the defendant twice over for related conduct.
  • Restricting a publication order to local outlets only was rejected as inconsistent with the sentencing purposes of general deterrence, denunciation, and community accountability under section 3A of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Protection of the Environment Operations Act 1997 (NSW), ss 3, 120, 123, 241, 248, 250
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 23

Cases:
- R v Thompson; R v Houlton (2000) 49 NSWLR 383
- R v Borkowski [2009] NSWCCA 102
- R v Doan (2000) 50 NSWLR 115
- R v El Masri [2005] NSWCCA 167
- Re Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 2) [2002] NSWCCA 515
- Veen v R (No 2) (1988) 164 CLR 465
- Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34
- Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
- Environment Protection Authority v Big Island Mining Pty Ltd [2014] NSWLEC 131
- Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419
- Environment Protection Authority v Hardt [2007] NSWLEC 284
- Environment Protection Authority v Peak Gold Mines Pty Ltd [2013] NSWLEC 158
- Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65
- Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222
- Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242
- SZ v R [2007] NSWCCA 19
- Khanwaiz v R [2012] NSWCCA 168
- R v Carroll [2008] NSWCCA 218