Citation: Natural Resources Access Regulator v Green Leaf Australia Group Pty Limited; Natural Resources Access Regulator v Xiuming Lin [2025] NSWLC 1
Court: Local Court of New South Wales
Date: 27 February 2025
Judge: Nash LCM
Background
A corporate operator of a commercial greenhouse farming business, growing tomatoes, cucumbers, and ginger in the Kempsey region of NSW, owned a property on which several water storages and a channel had been constructed and used over a period of years. At no point did the company, or any other person, hold the approvals required under the Water Management Act 2000 (WM Act) to construct or use those structures. The regulator, the Natural Resources Access Regulator (NRAR), investigated and prosecuted both the company and its director under the WM Act's executive liability provisions.
Following a contested hearing, the Magistrate found 12 offences proved against each of the company and the director on 25 June 2024 (see [2024] NSWLC 2). The sentencing proceedings were heard on 25 November 2024 and 21 February 2025, with the sentencing remarks delivered on 27 February 2025.
The offences were strict liability offences under ss 91B and 91E of the WM Act, covering the use of four unauthorised dams, the construction of extensions to two dams, and the removal of material from a wetland without a controlled activity approval. The conduct spanned October 2016 to February 2021 and some of it occurred within the Clybucca Aboriginal area.
Legal Issues
The court was required to resolve the following contested issues on sentence:
- The extent of environmental harm caused by the offending conduct
- The proper characterisation of the state of mind of each offender (relevant to moral culpability)
- Whether the company and the director had shown genuine contrition and remorse
- The risk of re-offending and each offender's prospects of rehabilitation
- How the totality principle should be applied across the 12 offences for each offender
- The relevance of the Local Court's jurisdictional limit on penalties, and the significance of the prosecutor's choice to proceed in the Local Court rather than the Land and Environment Court
- Whether criminal prosecution was the appropriate enforcement mechanism
- Whether the Local Court had power to make the proposed restoration and remediation orders
- Whether costs should be awarded to the prosecutor, and in what amount
Decision
The court applied the instinctive synthesis approach to sentencing, weighing both the objective seriousness of the offences and the subjective circumstances of each offender. Some of the offending caused actual environmental harm, including to listed Endangered Ecological Community freshwater wetlands, and some occurred within the Clybucca Aboriginal area. These factors elevated the objective gravity of the conduct.
On the disputed issues of state of mind, contrition, and rehabilitation, the court considered extensive evidence from both the prosecutor and the defence, including expert environmental reports, financial records, character references, and the director's own statement and apology letter. The court explained how it weighed evidence from a witness (Ms Kelly) who was not available for cross-examination, noting the limited use to which that material was put.
On jurisdictional and procedural questions, including whether the Local Court was the appropriate venue and whether criminal prosecution was warranted, the court resolved those issues adversely to the offenders. The court also confirmed it held the power to make restoration and remediation orders under s 353B of the WM Act and publication orders under s 353G.
Applying the totality principle to avoid disproportionately crushing sentences across 12 offences for each offender, the court imposed total fines of $224,000 on the company and $71,250 on the director. Both were ordered to carry out remediation works, to publish a prescribed advertisement in local newspapers at their own expense, and to pay the prosecutor's professional costs jointly and severally in the sum of $155,000.
Orders Made
- The company was convicted and fined a total of $224,000.
- The director was convicted and fined a total of $71,250.
- Both offenders were ordered to carry out restoration and remediation works under s 353B of the WM Act.
- Both offenders were ordered, within 28 days and at their own expense, to publish an advertisement in prescribed terms (Annexure B) in the digital and print editions of the Port Macquarie News, the Manning River Times, and The Macleay Argus, at specified minimum sizes, in the next available edition and within the first 10 pages.
- Within 30 days of publication, both offenders were required to provide the prosecutor with a complete copy and screenshot of the advertisement in each publication.
- Compliance by either one of the company or the director with the publication orders was sufficient for both.
- The company and the director were ordered jointly and severally to pay the prosecutor's professional costs of $155,000 under s 215 of the Criminal Procedure Act 1986.
- One half of each fine imposed was directed to be paid to the prosecutor under s 122(2) of the Fines Act 1996.
Key Takeaways
- Strict liability offences under ss 91B and 91E of the WM Act apply to both corporate landowners and their directors, with directors exposed to liability through executive liability provisions where the company commits the relevant conduct.
- Environmental harm to listed Endangered Ecological Communities and conduct occurring within an Aboriginal area are factors that increase the objective seriousness of water management offences for sentencing purposes.
- The Local Court confirmed its power under the WM Act to make restoration and remediation orders (s 353B) and publication orders (s 353G) in addition to fines, making the Local Court proceedings capable of producing the full suite of remedial outcomes.
- Applying the totality principle across multiple charges requires the court to ensure the aggregate penalty remains proportionate and does not become crushing, even where 12 separate offences are established.
- Costs of $155,000 were awarded jointly and severally against both offenders, reflecting the court's approach to costs in regulatory criminal proceedings where the prosecutor has been substantially successful.
Legislation and Cases Referenced
Legislation:
- Water Management Act 2000 (NSW), ss 91B, 91E, 353B, 353G
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 215
- Fines Act 1996 (NSW), s 122(2)
- Biodiversity Conservation Act 2016 (NSW)
- Environmental Planning and Assessment Act 1979 (NSW)
- National Parks and Wildlife Act 1974 (NSW)
- Protection of the Environment Administration Act 1991 (NSW)
Cases:
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- DS v R [2022] NSWCCA 156
- Paterson v R [2021] NSWCCA 273
- Ace Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4
- Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234
- Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280
- Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
- Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
- Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185
- Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71
- Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483