Land and Environment Court New South Wales

• Medium Neutral Citation: Environment Protection Authority v Orica Australia Pty Ltd (the Botany Mercury Incident) [2014] NSWLEC 110
• Hearing dates: 5, 6, 10 and 12 December 2012 and 20 May 2013
• Decision date: 28 July 2014
• Jurisdiction: Class 5
• Before: Pepper J

Decision

See orders at [156].

• Catchwords: ENVIRONMENTAL OFFENCES: breach of licence condition causing release of mercury vapour - failure to operate plant and equipment in a proper and efficient manner - guilty plea - sentencing principles - whether De Simoni principle applicable - whether totality principle applicable - determination of appropriate penalty.
• Legislation Cited: Contaminated Land Management Act 1997; Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22, 23; Protection of the Environment Operations Act 1997, ss 3, 64, 241, 250
• Cases Cited: Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131; Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299; R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
• Category: Sentence
• Parties: Environment Protection Authority (Prosecutor); Orica Australia Pty Ltd (Defendant)
• Representation: Mr S Rushton SC and Mr D A Hughes (Prosecutor); Mr T A Game SC, Mr D Jordan SC and Ms K Edwards (Defendant); Office of Environment and Heritage (Prosecutor); Ashurst Lawyers (Defendant)
• File Number(s): 50974 of 2012

Judgment

Orica Pleads Guilty to an Offence of Breaching a Licence Condition Resulting in the Release of Mercury Vapour at Botany

1 The defendant, Orica Australia Pty Ltd ("Orica"), pleaded guilty to nine charges under the Protection of the Environment Operations Act 1997 ("the POEOA") which were addressed in concurrent sentence proceedings. Those charges related to seven separate pollution incidents occurring on different dates between October 2010 and December 2011. Although the proceedings were heard concurrently, it was appropriate, given the separate nature of each incident, that seven separate judgments be produced, that is, one for each discrete pollution incident.

2 The principal judgment summarises all of the charges, outlines in greater detail the conduct of the proceedings and gives a fuller articulation of the relevant sentencing principles than the six subsequent judgments (Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103, "the principal judgment"). Those principles are applied, where relevant, in this judgment, but are expressed only in summary form. It is therefore necessary to read this judgment together with the principal judgment.

3 This judgment concerns the imposition of the appropriate sentence for an offence that was committed by Orica on 27 September 2011, which involved the release to the environment of mercury vapours when louvres were left open at Orica's Former ChlorAlkali Plant Mercury Remediation Project ("FCAP Remediation Project") at Botany Industrial Park ("the Botany Mercury Incident").

4 The Botany Mercury Incident led to one charge of breach of a licence condition under Environment Protection Licence Number 2148 ("Licence 2148"), contrary to s 64(1) of the POEOA. Orica has pleaded guilty to the charge.

Background to Orica's FCAP Remediation Project

5 Orica is the operator of the site at which the Botany Mercury Incident occurred. Orica holds Licence 2148 for the Botany Licensed Premises located at 16-20 Beauchamp Road, Matraville ("the premises").

6 Among other activities, Licence 2148 authorises Orica to carry out remediation activities comprising the FCAP Remediation Project. These activities concern remediating historical mercury contamination at the premises.

7 The FCAP Remediation Project is a Voluntary Remediation Proposal which was approved by the prosecutor, the Environment Protection Authority ("the EPA"), in 2011 under the Contaminated Land Management Act 1997. It involves the excavation and transport of contaminated soil to a wash plant to remove the mercury.

8 There are two elements to the FCAP Remediation Project. The first involves excavating mercury-contaminated soil within an area called "Block G" which is enclosed within a large shed-like structure known as a Temporary Emissions Control Enclosure ("TECE"). The second involves excavating mercury-contaminated soil within an open area designated "Block M", which is not enclosed by a structure.

9 Licence 2148 includes, relevantly, condition O2.1(b) which requires that:

"All plant and equipment installed at the premises or used in connection with the licensed activity:

...

(b) must be operated in a proper and efficient manner."

Particulars of the Charge

10 The essential facts giving rise to the commission of the offence were not in dispute and were recorded in an Amended Statement of Agreed Facts dated 28 November 2012, supplemented by additional evidence.

11 Particulars of the breach of s 64 of the POEOA were given in the Amended Summons filed 28 November 2012. Orica agreed that the TECE at the premises was not operated in a proper and efficient manner in that it:

(a) failed to ensure that all louvres were closed and/or airtight at a time when there was no emissions control system ("ECS") in operation at the TECE;

(b) failed to ensure that all roof ducts were covered at a time when there was no ECS in operation at the TECE; and

(c) as a result of the failure to operate the TECE in a proper and efficient manner, pollutants, namely, mercury vapour, escaped into the atmosphere.

Evidence

12 As outlined in the principal judgment (at [22]-[23]), the evidence principally comprised two general affidavits of Mr Sean Winstone, who was the Global Executive - Manufacturing for Orica at the time, sworn 6 and 23 November 2012. In those affidavits Mr Winstone deposed generally to matters relevant to all seven pollution incidents. Mr Winstone was cross-examined on the content of his affidavits.

13 Further, Mr James Stening, the Senior Environmental Technologist at the premises, swore an affidavit on 4 December 2012, in relation to the Botany Mercury Incident. He was not required for cross-examination.

14 Mr Stening holds a Bachelor of Chemical Engineering and a Postgraduate Diploma in Management. He is certified through the Chisholm Institute of TAFE as a health, safety and environmental lead auditor.

15 In his affidavit, Mr Stening gave evidence that he had been involved in the FCAP Remediation Project since its inception. His role was to provide technical advice on the Project, which included: developing the scope of the remediation works; reviewing remediation action plans and environmental management plans; liaising with the EPA; preparing and implementing ambient air quality monitoring programs and developing environmental compliance plans.

16 Mr Stening also deposed to Orica's community engagement in Botany and its funding of environmental improvements at the premises. In total, Orica had spent approximately $335 million on these improvements and on legacy environmental issues on the premises.

The FCAP Remediation Project

17 The process of treating mercury-contaminated soil at the FCAP can create mercury vapour. The purpose of the TECE is to manage mercury vapour associated with the FCAP Remediation Project at Block G. The TECE is fitted with two ECSs, which contain activated carbon absorbers designed to reduce the mercury in the vapour prior to discharge of the vapour from the TECE through the two ECS stacks.

18 The nature, operation and maintenance of the TECE and its components were outlined in various reports prepared by Thiess Services Pty Ltd ("Thiess"). These reports were not in evidence but the Statement of Agreed Facts noted that they dealt with the following matters: air quality management; TECE operations and maintenance; and the TECE's ECS operation and maintenance and functional specifications.

19 The TECE comprises a building with two sections, a separate loading dock and wheel wash, each serviced by ventilation ducts; a ventilation system; and two ECSs ("ECS1" and "ECS2"), one at the northern end and one at the southern end of the TECE.

20 The ventilation system consists of:

(a) approximately 40 ground level, head high or elevated louvres located around the TECE's external walls that may be opened to allow fresh air to be drawn into the TECE when the ECSs are operating;

(b) vertical roof air ducts or vents near the inner wall of the TECE to draw fresh air into areas of the TECE at nominal breathing height that might not otherwise be sufficiently ventilated by the louvres;

(c) ducts along the roof that extract air from within the TECE. These have grilles and adjustable louvres to control air intake;

(d) induced draft fans at each of the two ECSs that draw air from within the building through the ECSs; and

(e) two 20m high stacks that discharge treated emissions from the ECSs into the atmosphere.

21 ECS1 and ECS2 each consist of:

(a) a heater bank to reduce relative humidity in the extracted air;

(b) dual treatment trains containing particulate filters and a lead and lag granulated activated carbon ("GAC") bed to capture mercury emissions;

(c) a mercury vapour monitor that continuously monitors mercury at a point between the lead and lag GAC bed; and

(d) two dampers that can be closed to prevent air flowing, ultimately out of the stacks, during ECS maintenance.

Management of Mercury Vapour at the Botany Premises

22 The TECE manages mercury vapour associated with the FCAP Remediation Project by using the ventilation system to capture and transport emissions from within the TECE through the ECSs, which contain carbon beds to remove mercury from the air before it is vented. This occurs at a rate of about two building air changes per hour (140,000m3 of air per hour).

23 The TECE structure encloses the mercury-contaminated soil thereby minimising the emission of mercury vapour from the remediation area in Block G to the ambient air. The TECE is designed so that air flows into the TECE via louvres located on the walls of the TECE and through the roof ducts. The air within the TECE then passes through the ECSs and is vented through a stack fitted to each ECS. Ordinarily, while the ECSs are running, the louvres and roof ducts open to allow air to enter the TECE.

24 Orica monitors mercury vapour at several locations on the premises. First, a mercury vapour meter ("MVM") is fitted to each ECS. These indicate when the carbon is spent and needs replacement. Second, a Lumex meter measures mercury emissions at a location around 25m inside the southeast boundary of the premises. Third, a hand-held mercury meter is used by employees to measure the concentration of mercury at each louvre on a daily basis. Fourth, Orica engages URS Australia Pty Ltd ("URS") to conduct mercury vapour monitoring on the premises using the Lumex meter.

25 At the relevant time, condition E1 of Licence 2148 imposed a number of requirements with respect to the management of mercury emissions from the FCAP Remediation Project at the premises including:

(a) condition E1.2, that authorised Orica to discharge up to 100µg/m3 of mercury from the stack fitted to each ECS;

(b) condition E1.7, that required Orica to submit a Mercury Breakthrough Action Plan to the EPA for approval; and

(c) condition E1.8, that required Orica to develop an Ambient Air Monitoring Program to monitor fugitive emissions from the FCAP Remediation Project and to submit a report on the type, frequency and location of monitoring to the EPA for approval prior to TECE works commencing.

26 In accordance with these conditions, Orica prepared a Mercury Breakthrough Action Plan, setting out the process for changing the activated carbon beds, and submitted it to the EPA for approval. The Plan required the ECSs to be shut down in order for the activated carbon beds to be changed if the mercury concentration between the beds exceeded specific levels, to ensure that mercury emissions from the stacks did not exceed the licence limit. Meters in each ECS were installed to activate an alarm in such circumstances.

27 On 14 March 2011, Orica also submitted an Ambient Air Monitoring Program to the EPA. On 13 April 2011, the EPA advised the Program was appropriate subject to revision. The final version of the Program (dated 21 July 2011) specified an action level at the southeast boundary of the premises of 1.8µg/m3 of mercury measured as a 30 minute block average, and set out steps that Orica should take if that level was exceeded. The 30 minute block average for measurement of mercury action level was a more stringent level than the EPA's impact assessment criterion set out in its Approved Methods for Modelling and Assessment of Stationary Sources 2005 publication, which used a one hour block average.

28 On 29 August 2011, the EPA requested that further ambient air/fugitive emissions monitoring be conducted and that the results be documented and reported weekly to the EPA. On 6 September 2011, Orica advised the EPA of the monitoring and reporting system it had implemented in response to that request.

29 The TECE was designed, constructed and operated by Thiess pursuant to a contract with Orica. Thiess operated the TECE during the initial phases of the FCAP Remediation Project. On 26 August 2011, operation of the ECSs was handed over to Orica. Orica's Operations Manager, Mr Colin Wiley, was responsible for overseeing the Project and Orica contractor, Mr Tim Nightingale, was responsible for monitoring the ECSs. Thiess remained responsible for other TECE management activities including soil-washing and opening and closing louvres, the latter of which could only be carried out from inside the TECE.

30 A number of Standard Operating Procedures ("SOPs") were in place for the TECE, prepared by Thiess and adopted by Orica, detailing how the TECE should be operated. Relevant SOPs included the:

(a) Automatic Operation of the TECE ECSs (revised 9 March 2011);

(b) Manual Operation of the TECE ECSs (revised 14 March 2011);

(c) ECS Alarms - TECE (revised 16 September 2011);

(d) GAC and Particulate Filter Replacement Procedure (revised 24 March 2011);

(e) Sampling ECS Breakthrough (revised 15 March 2011); and

(f) Daily Operation of the TECE Building Emission Control System, Building Alarms and Lights (revised 22 September 2011).

The Release of Mercury Vapour

31 During the evening of 23 September 2011, the MVM alarm on both of the ECSs was triggered, indicating that the mercury concentration in the air between the lead and lag carbon beds of each ECS had exceeded the threshold level of 50µg/m3 as specified in the Mercury Breakthrough Action Plan. This indicated that the ECS may be approaching saturation and was supposed to act as a prompt for the replacement of carbon in the lead bed.

32 At 7.49pm on 23 September 2011, a Thiess employee advised Orica of the MVM alarms on both ECSs.

33 At 8.50pm, Orica's Process Engineer, Mr David Johnson, arrived on site.

34 At 9.20pm, Mr Johnson and Mr Wiley decided to continue to operate both ECSs but to reassess the situation in the morning.

35 Early on 24 September 2011, an MVM alarm was received by Orica and at approximately 7.15am, Mr Nightingale commenced an investigation into the ECSs. At approximately 9.00am, Mr Johnson and Mr Stening decided to shut down both ECSs, to close the louvres and to cease work within the TECE. The ECSs were shut down to prevent unacceptable mercury emissions from the stacks arising from the elevated inter-bed and post-bed mercury readings, which suggested that mercury breakthrough was occurring. This was an unexpected eventuality because both activated carbon beds had only been operating for four days, whereas usually they could be expected to operate effectively for three months.

36 At approximately 10.00am, Orica employees instructed Thiess employees to cease work within the TECE and to close the louvres in order to reduce the potential for fugitive mercury emissions from the TECE. At 10.30am that day, Mr Nightingale shut down both ECSs, which was completed at 10.42am.

37 At approximately 12.25pm, Mr Stening rang the EPA's EnviroLine to report that Orica had to close down both ECSs.

38 At approximately 5.21pm, Mr Stening emailed the EPA in relation to closing down both ECSs .

39 Orica engaged URS to conduct continuous mercury vapour monitoring at the Lumex meter inside the south eastern boundary of the premises. Additionally, Mr Nightingale continued to take hand-held readings of mercury at the louvres external to the TECE using a Jerome 45 mercury meter.

40 On 25 September 2011, planning work for the changeover of the carbon beds in the ECSs commenced.

41 At 6.30am the next day, Orica started to implement the carbon changeover plan for the ECSs and to investigate the carbon bed failure.

42 Between 10.58am and 11.59am the same day, Mr Nightingale inspected the TECE and took daily ambient air mercury readings at all but three louvres around the TECE, during which he noted that most louvres were shut but that some of the elevated louvres had been left open. He recorded elevated levels of mercury at some of the louvres, including Louvre 25 where a maximum mercury concentration of 452.36µg/m3 was recorded. Orica instructed Thiess to close all of the elevated louvres.

43 Later on 26 September 2011, Orica started to replace the carbon beds within ECS2.

44 At 2.16pm, the EPA emailed Orica requesting certain information regarding the shutdown of both ECSs.

45 At 5.41pm, Orica's Project Manager, Mr Peter O'Dea, emailed the EPA providing further information regarding the shutdown.

46 At approximately 9.40am on 27 September 2011, Mr Nightingale recorded mercury levels of close to 2µg/m3 using a hand-held meter at the Lumex meter location. He advised Mr O'Dea and Mr Johnson of the reading.

47 At 9.45am, Mr Johnson checked the Bureau of Meteorology and Seabreeze websites for weather data and observed that the wind direction had generally been from the north west that morning.

48 At 9.50am, Mr O'Dea called URS to check whether the Lumex meter had recorded elevated levels of mercury. At 10.00am, URS notified Orica that elevated mercury vapour concentrations had been recorded between 2.00am and 9.00am that day at the south east boundary of the premises, with the maximum 30 minute average concentration exceeding 4µg/m3.

49 At 10.15am, Orica undertook fugitive emissions monitoring around the TECE and recorded elevated mercury levels at some louvres, including Louvre 25, which recorded a maximum concentration of 365µg/m3. Orica noted that Louvre 25 was closed but not airtight.

50 At 10.20am, Mr O'Dea instructed an Orica employee to immediately cover and seal Louvre 25 with plastic to ensure mercury vapour could not escape. Louvre 25 was sealed with plastic and tape within half an hour.

51 At 10.40am, Mr O'Dea called Orica's external TECE indoor air sampling consultants, ERM, and was advised that mercury concentrations in excess of 2000µg/m3 had been recorded inside the TECE. At 10.55am, Orica notified the EPA case officer who was on site at the time. The EPA officer advised Orica to contact and report the incident to the EPA's EnviroLine.

52 Between 10.56 and 11.59am, Mr Nightingale observed that the ground level louvres were closed but that some elevated louvres ("about 4 louvers [sic] out of 30") were still open.

53 Thiess has subsequently advised the EPA, in response to a statutory notice served on it, that it had closed all louvres including the elevated louvres by 26 September 2011. Nevertheless, on the morning of 27 September 2011 some of the elevated louvres remained open. At some point that day, all of the elevated louvres were closed.

54 At 11.10am, Mr O'Dea rang the EPA's EnviroLine to report the Incident.

55 At 3.10pm, Mr O'Dea spoke to Mr Johnson about the ECS stacks and a decision was made to close the ECS dampers. At 3.20pm, Mr Johnson closed the dampers within ECS1 (the dampers in ECS2 were already closed due to works at ECS2).

56 At 4.30pm, Orica notified:

(a) NSW Health;

(b) the City of Botany Bay Council;

(c) WorkCover NSW;

(d) Orica's Community Liaison Committee; and

(e) certain Local, State and Federal members of Parliament.

57 After 9.00am on 27 September 2011, the mercury level measured at the Lumex meter fell below, and remained below, the nominated action level of 1.8µg/m3.

A Clean Up Notice is Issued to Orica

58 On 27 September 2011, the EPA issued a Clean Up Notice requiring Orica to:

(a) take immediate action to prevent fugitive mercury emissions and ensure compliance with a 30 minute average mercury concentration of 1.8µg/m3 at the Lumex monitor location;

(b) provide reports to the EPA in relation to the Incident; and

(c) take immediate action to notify and inform the local community of the elevated ambient mercury levels and actions being taken by Orica in response.

59 On 27 September 2011, Orica notified local residents in accordance with the Clean Up Notice and provided a letter to the EPA as required.

Subsequent Events

60 On 27 September 2011, the NSW Department of Health issued a media release regarding the Incident.

61 On the morning of 29 September 2011, a Thiess employee asked Mr O'Dea if Orica wanted the roof air vents sealed. Mr O'Dea had not previously considered the roof vents as an emissions source and spoke to Mr Wiley about "plastic wrapping the bottoms" of the roof vents.

62 On the evening of 29 September 2011, Mr Johnson observed air flowing from within the TECE into a roof vent inlet and also heard a hissing noise coming from the TECE louvres and observed that there was air exiting the TECE from the louvres.

63 On 30 September 2011, Orica provided an Incident Report to the EPA.

64 On 30 September 2011, the EPA issued a second Clean Up Notice to Orica that required Orica to:

(a) carry out mercury monitoring at the premises; and

(b) provide monthly reports to the EPA that demonstrated that "Best Available Technology and Best Environmental Practice are being used to reduce, with the aim of eliminating, mercury emissions from the TECE".

65 At 11.04am on 5 October 2011, Mr Johnson spoke to a Thiess employee and requested that the roof ducts be sealed with a garbage bag and taped to prevent potential fugitive emissions. At 1.30pm that day, all of the roof ducts were covered with garbage bags and duct slide plates were installed in approximately three of the vertical ducts.

66 From 11 October 2011, rolls of polythene sheet were placed on the ground surface inside the TECE to reduce surface emissions and a small ECS was used to treat air within the TECE and recirculate it to reduce indoor concentrations.

Steps Taken by Orica Since the Incident to Prevent Recurrece

67 Orica took steps in response to the Clean Up Notice issued by the EPA on 30 September 2011. Orica provided three reports to the EPA on Best Available Technology and Best Environmental Practice in relation to the TECE dated 6 October 2011, 4 November 2011 and 6 December 2011 respectively. These reports set out the steps taken by Orica to prevent a recurrence of the Incident, including:

(a) sealing Louvre 25 within 70 minutes of detection of elevated mercury levels;

(b) ensuring that Thiess employees closed all louvres, and closing the damper in ECS1;

(c) closing and covering roof duct vents on 5 October 2011;

(d) commissioning the temporary ECS and laying polythene ground coverings in the TECE on 11 October 2011;

(e) undertaking continuous fugitive emissions-monitoring at the TECE;

(f) restarting the two permanent ECSs. This included undertaking a series of lab-scale column tests evaluating the performance of many types of impregnated activated carbon before selecting which activated carbon to use as a replacement in the two ECSs; and replacing the carbon beds with sulphur-impregnated activated carbon, which had demonstrated the most significant capability to absorb and retain mercury vapour. A global search to obtain sufficient carbon to fully charge both ECSs was required. The two ECSs were then restarted on 2 and 4 November 2011, after the sulphur-impregnated activated carbon beds had been installed; and

(g) covering unpaved hotspot areas in Block M (which was outside the TECE and not covered) with polythene sheet weighed down with sandbags.

68 Finally, Orica engaged PAE Holmes to provide an air modelling report (dated 13 December 2011) on the likely sources of fugitive mercury emissions at the TECE on 27 September 2011.

Sentencing Principles

69 A discussion of the applicable sentencing principles is set out at [80]-[93] and [168] of the principal judgment, which I adopt here.

70 Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") sets out the purposes of sentencing an offender. Relevant purposes in these proceedings are those contained in ss 3A(a), (b), (c), (e), (f) and (g).

71 In addition, s 21A of the CSPA identifies the matters that the Court must take into account when determining the appropriate sentence, including factors in aggravation under s 21A(2) and factors in mitigation under s 21A(3). Relevant potential aggravating factors for this offence are limited to those contained in ss 21A(2)(d) and (g) of the CSPA. Relevant subjective circumstances or mitigating factors are those contained in ss 21A(3)(e), (f), (g), (i), (k) and (m) of the CSPA. The factors are discussed further below.

72 Finally, s 241 of the POEOA further provides legislative direction as to matters that are to be considered in imposing penalty for offences committed under that Act. Section 241(1) of the POEOA is a list of the objective circumstances of an offence that must be considered by the Court insofar as they are relevant, while s 241(2) of that Act recognises the Court's discretion to consider other matters relevant to the particular circumstances of the proceedings.

Objective Circumstances of the Offence

Nature of the Offence

73 A fundamental consideration of relevance to environmental offences is the degree to which Orica's conduct offends against the legislative objectives. Those objects are found in s 3 of the POEOA.

74 The nature of the offence of breach of licence has been discussed in the principal judgment (at [103]-[104]).

75 By failing to ensure that Thiess had closed the elevated louvres on the TECE at the FCAP Remediation Project, as instructed by Orica, by failing to ensure that Louvre 25 adequately minimised the escape of mercury emissions from the TECE and by failing to ensure the roof ducts were closed or covered for days, Orica did not operate the TECE in a proper and efficient manner as required by Licence 2148.

76 This breach of licence condition was plainly incompatible with the statutory scheme and objects established by the POEOA for the protection of the environment. It undermined the object of reducing risks to human health and preventing the degradation of the environment by the use of mechanisms that promote pollution prevention; of reducing discharges of harmful substances; and of making progressive environmental improvements, including the reduction of pollution at the source.

77 Licence holders are licensed to carry out activities which, if not carried out properly, safely or efficiently, have the potential to cause harm to the environment and human health. The breach of licence condition caused the escape of mercury vapour into the atmosphere. Mercury is a pollutant that is potentially harmful to human health and is antithetical to the object expressed in s 3(d) of the POEOA.

Statutory Licences - a Breach of Public Trust?

78 The EPA emphasised that Licence 2148 is a licence to conduct hazardous activities in close proximity to residential homes. By granting that licence, the people of New South Wales had placed "considerable trust" in Orica, particularly the nearby residents.

79 As discussed in the principal judgment (at [106]-[107]), the EPA accordingly submitted that Orica was in a position of public trust, or alternatively a position of privilege, which was contravened by the breach of licence condition.

80 However, for the reasons given in the principal judgment, I do not accept that breach of public trust is a matter than can be taken into account under s 241(2) of the POEOA as a factor increasing the objective gravity of the offence (see [108]-[111]).

Maximum Penalty

81 The maximum penalty for the commission of the offence pursuant to s 64(1) of the POEOA is $1 million for a corporation. There is a spectrum of offending behaviour covered by a given offence and the imposition of the maximum penalty is necessarily reserved for the worst case for which the penalty is prescribed.

Environmental Harm Caused by the Incident

82 The environmental harm caused by the commission of an offence is, as was stated in the principal judgment (at [116]-[118]), a central consideration in determining the objective gravity of the offence. The concept of harm in the context of environmental offences is broad and includes the potential or risk of harm, not merely actual harm (see the authorities referred to in the principal judgment at [117]). Harm can be direct, indirect or cumulative and activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, must nonetheless be treated seriously.

83 Section 241(1)(a) of the POEOA makes it clear that, in sentencing, the Court must consider the "extent of the harm caused or likely to be caused to the environment by the commission of the offence". The POEOA defines "harm to the environment" to include "any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution".

84 Mercury is known to have a number of potential health effects when people are exposed at particular concentrations or for extended periods. These include:

(a) it can cause irritation of the eyes, skin and respiratory system if those parts of the body are exposed to it; and

(b) over a long period of time it can produce chronic adverse effects. Repeated minor exposures to mercury may have a cumulative poisoning effect.

85 These potential adverse impacts were described in Orica's Safety Data Sheet for mercury. The Safety Data Sheet indicates that mercury is:

(a) classified as a "hazardous substance" according to Safe Work Australia criteria;

(b) classified as a "dangerous good" according to the Australian Dangerous Goods Code criteria;

(c) classified as a "dangerous poison" (S7) under the Poisons Schedule; and

(d) in terms of its risk profile, classified as:

Very toxic by inhalation. Toxic: danger of serious damage to health by prolonged exposure through inhalation. Very toxic to aquatic organisms. May cause long term adverse effects in the aquatic environment. May cause harm to the unborn child.

86 Additional toxicological information, including its potential long term and overexposure impacts, were also described in the Safety Data Sheet, that cautioned to "[a]void release to the environment".

87 The Incident resulted in elevated mercury vapour concentrations being recorded between 2.00am and 9.00am on 27 September 2011 at the Lumex meter, located 25m within the boundary of the premises, with the maximum 30 minute average exceeding 4.0µg/m3. The Lumex meter is approximately 50m from the nearest residence.

88 The Incident had the potential to disperse mercury vapour downwind of the premises and towards the residential area of Botany. The downwind environment consists of low density residential areas with the following receptors:

(a) humans, namely, workers and offsite residents who may have been exposed to mercury vapour in the air during the Incident;

(b) plants, soil and other terrestrial and aquatic environments; and

(c) domestic pets within offsite residential areas.

89 Two reports were prepared after the Botany Mercury Incident regarding the likely health and environmental impacts as a result of the discharge.

90 A health assessment report entitled "Health Impact of Mercury Exceedance" was prepared by Toxikos on 29 September 2011. The report concluded that:

(a) the average concentration over the exposure period at the boundary fence of the premises was estimated at 1.68µg/m3 (inside the fence line);

(b) the total potential exposure to a person at the boundary fence was approximately 6.7µg of mercury and for a 70kg person was 0.1µg/kg/day;

(c) the single exposure to a dose of 0.1µg/kg/day of mercury was approximately 20 times less than the lifetime tolerable daily intake of inorganic mercury (the form of mercury involved in the Botany Mercury Incident). This was, however, a level that assumed an exposure to mercury every day over a person's entire life, and sets the level of 2.0µg/kg/day as a tolerable daily level of exposure. This is the limit established by the World Health Organisation;

(d) the single exposure of 0.1µg/kg/day of mercury is about the same as the average total daily intake from diet and dental amalgam of all forms of mercury (as reported in a 1999 US Department of Health toxicological profile);

(e) the potential exposure was less than the tolerable daily intake for mercury and less than, or about the same as, long term or lifetime daily exposures that do not cause demonstrable health effects; and

(f) therefore, "health effects resulting from the incident are very unlikely".

91 An environmental effects report entitled "Initial Assessment of Potential Effects associated with Elevated Ambient Mercury Concentrations from Former CAP on 27 September 2011" was prepared by Environmental Risk Sciences on 29 September 2011. The report concluded that:

(a) the Incident exceeded the adopted short duration action level established between the EPA and Orica of 1.8µg/m3 as a trigger for action in relation to the operation of the FCAP Remediation Project;

(b) the most significant environment likely to be impacted by the elevated mercury concentrations were the offsite residential areas (noting that the vapour exceedance occurred overnight, between 12pm and 9am, when workers were not present) where low levels of mercury vapour may have been inhaled during the Incident. Adverse effects on terrestrial and aquatic environments were considered negligible; and

(c) the monitoring measurements indicated that "no adverse health effects are expected to have occurred off-site as a result" of the Incident. This conclusion was based on the nature of the event (as a single release event), the concentrations reported at the premises, the distance of the residential areas from the monitoring point, and the available criteria for assessing acute mercury exposure events associated with accidental vapour release scenarios.

92 Orica received seven complaints and inquiries regarding the Incident. These complaints expressed concern about the elevated mercury vapour concentrations near the boundary of the premises, questioned why residents and local businesses were not notified directly of the Incident, and queried the risks associated with the mercury release. Most of the complaints were from residents and one was from a local business expressing concern for the health and wellbeing of its staff and requesting to be notified immediately of any subsequent pollution incidents on the premises.

93 Presumably in light of this evidence, it was recorded as an agreed fact that no actual, or even likely, environmental harm was occasioned by the Incident.

94 Notwithstanding this agreement, the EPA nevertheless submitted that the commission of the offence caused environmental harm because:

(a) mercury is a pollutant that was released into the environment as a result of the offence. Elevated mercury vapour concentrations were recorded on 27 September 2011 at the Lumex meter, with the maximum 30 minute average exceeding 4.0µg/m3, which was more than twice the action level of 1.8µg/m3 at which Orica is required to take mitigation action under its Ambient Air Monitoring Program in order to protect human health at nearby residences. The Lumex meter is around 50m from the nearest residence;

(b) the release of mercury had the potential to disperse mercury vapour downwind of the premises and towards the nearby residential areas of Botany. Mercury absorption over a long period of time can cause adverse health impacts because repeated minor exposures can have a cumulative poisoning effect. In this case, the mercury vapour had the potential to be absorbed by humans, both nearby residents located offsite and workers onsite, and by domestic pets in offsite residential areas. Additionally, it had the potential to be absorbed into surrounding terrestrial and aquatic environments; and

(c) harm includes loss of amenity or quality of life. The community was concerned by the Incident. Orica received public complaints and queries about the Incident. One resident was "extremely concerned", another had significant concerns about Orica's ability to manage its own safety, a third caller was distressed and feared for the health of her daughter who lived near the premises, and a fourth was an adjacent business that was "extremely disappointed" at not being notified and expressed concerns for the health and wellbeing of its staff.

95 Orica submitted that not only was there no actual or likely environmental harm, nor was there any potential environmental harm. This was because:

(a) the action levels were trigger levels that were deliberately set at a "very conservative limit";

(b) the Toxikos report had concluded that any health effects resulting from the Incident were very unlikely;

(c) the Environmental Risk Sciences report had concluded that no adverse health effects were expected to have occurred offsite as a result of the Incident; and

(d) the fact that a concentration level is above a set action level did not mean that human health was seriously at risk. It was an agreed fact that the potential exposure of a person standing on the boundary of the premises was approximately the same as the average total daily intake from diet and all other forms of mercury and was also less than the lifetime tolerable daily intake of inorganic mercury (which refers to the amount considered acceptable assuming an exposure to that amount every day over a person's lifetime rather than an exposure on a single day).

96 In addition, Orica challenged the EPA's submission that the loss of amenity associated with community health concerns was relevant to an assessment of the harm caused by the Incident. Orica highlighted that the complaints followed a NSW Department of Health media release which incorrectly stated that there had been an "emission of mercury vapour that exceeded the levels defined in the licence".

97 There can be no doubt that the release of mercury at elevated concentrations into the atmosphere was, as a matter of law, capable of satisfying the definition of "harm to the environment" in the POEOA insofar as it includes any act that results in pollution. This is consistent with the broad description of the concept of harm to the environment given by Preston J in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 (at [145]-[147]). However, given that the EPA and Orica agreed that there had been no actual or likely harm caused by the Incident, I do not understand how this assists the EPA.

98 Furthermore, I agree with Orica that the seven complaints, received as they were after the factually incorrect media release was issued, is insufficient evidence of a loss of amenity suffered by the community caused by the commission of the offence.

99 However, I accept that the Incident had the potential (as opposed to the 'likelihood') to cause environmental harm. As Orica's Safety Data Sheet establishes, mercury is a poison with high toxicity to humans in sufficient concentrations and over prolonged periods of exposure. It is classified as:

(a) a "hazardous substance";

(b) a "dangerous good";

(c) a "dangerous poison"; and

(d) "very toxic by inhalation".

100 Nevertheless, because the actual levels of mercury vapour recorded were low enough to reduce the risk of environmental harm to an almost negligible level, the potential to cause harm to the environment by the breach of the licence condition must be characterised as remote, particularly in light of the steps that Orica took in the aftermath of the Incident to minimise any environmental harm, such as closing and sealing louvres and roof ducts.

101 It also follows that the submission by the EPA that the Incident caused substantial harm should be taken into account as an aggravating factor, must be rejected (s 21A(2)(g) of the CSPA).

Orica's State of Mind

102 The offence is one of strict liability, which means that mens rea is not an element of the offence. However, the state of mind of an offender at the time of committing an offence is a relevant consideration when imposing a sentence because a strict liability offence that is committed, for example, negligently, will be objectively more serious than one committed accidentally (see the authorities in the principal judgment at [127]).

103 The parties disagreed about whether Orica's state of mind could, conformably with the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 (at 389), be taken into account with respect to the breach of licence offence under s 64(1) of the POEOA. In the principal judgment I concluded that it could (at [140]-[145]).

104 The EPA argued that the Court should find that s 64(1) of the POEOA was contravened negligently because of the following acts and omissions:

(a) Orica had instructed Thiess to close the elevated louvres on 26 September 2011, but in fact four were left open. Orica did not check that its instructions had been carried out and it was not until 27 September 2011 that contractors noticed that four louvres were open;

(b) Orica did not consider the roof ducts as a possible emissions source until Thiess raised it as a possibility;

(c) Louvre 25 was not sealed to prevent mercury emissions until 27 September 2011, that is to say, after Orica recorded a mercury concentration of 452.36µg/m3 on 26 September 2011; and

(d) Orica's process engineers observed air flowing from within the TECE into a roof outlet, yet it was not until 5 October 2011 that Orica gave a direction to cover the roof ducts.

105 These circumstances, combined with Orica's awareness of the potential dangers of an escape of mercury vapour, result in a finding that Orica negligently breached condition O2.1(b) of Licence 2148.

Reasons for Offending

106 In the present case, the offence was not committed for any ulterior reason that would increase its objective seriousness.

Foreseeability of the Risk of Harm

107 The extent to which Orica could have reasonably foreseen the harm caused by the commission of the offence is a relevant objective circumstance (s 241(1)(c) of the POEOA and the authorities referred to at [152] of the principal judgment). It is not necessary that the precise cause of an incident be foreseeable.

108 Orica accepted that the potential for mercury vapour emissions from the TECE was reasonably foreseeable because the TECE's purpose was to control mercury vapour and the Ambient Air Monitoring Plan contemplated that it would respond if the Lumex meter detected the "deliberately conservative" action level. Orica had procedures in place to manage mercury vapour in the event that the action level was detected.

109 However, Orica argued that it was not reasonably foreseeable that both ECS units would need to be shut down at the one time due to depleted activated carbon beds five days after the beds had been replaced. This was a "totally unexpected outcome" because the bed replacement time was usually three months.

110 While the need to shut down both ECS units may have been unforeseen, at issue is the foreseeability of harm arising from a failure by Orica to control and manage mercury emissions upon this event occurring. This risk was not only foreseeable, it was, as it transpires, foreseen.

111 For example, Thiess had prepared SOPs (described above) that were adopted by Orica. The Daily Operation of the TECE Building Emission Control System, Building Alarms and Lights SOP was revised on 22 September 2011, after Orica had taken over responsibility for oversight of the TECE. Section 3.4 of that SOP gave instructions for operating procedures when the two ECSs were switched off, which included the following (emphasis added):

The operations that occur within the TECE are likely to release Mercury Vapour emissions, odour and dust into the atmosphere inside the building. ...

Before shutting down the ECS1 and/or ECS2, check the corresponding wall louvers and vertical duct slide gates inside the TECE building are closed.

ECS should not be switched off if louvers [sic] are found to be open.

112 The Mercury Breakthrough Action Plan, steps 7 and 8, also contemplated circumstances in which the ECSs could be shut down.

113 I therefore find that the risk of environmental harm upon the commission of the offence was foreseeable.

Practical Measures Available to Orica to Avoid or Mitigate Harm

114 Section 241(1)(b) of the POEOA mandates that the Court consider the "practical measures that may be taken to prevent, control, abate or mitigate" the harm identified in s 241(1)(a).

115 Practical measures were taken after the Incident in order to prevent a recurrence in future. All of these could have been taken prior to the Incident in order for Orica to avoid or mitigate the harm. They included (see also the discussion above at [67]-[68]):

(a) ensuring that Thiess had followed its instruction to shut the louvres. Orica was responsible for overseeing the FCAP Remediation Project;

(b) ensuring that Louvre 25 was sealed to adequately minimise the escape of mercury emissions;

(c) ensuring that the roof ducts were shut, which Orica did not consider until 29 September 2011, and did not implement until 5 October 2011;

(d) following the Daily Operation of the TECE Building Emission Control System, Building Alarms and Lights SOP; and

(e) following the Mercury Breakthrough Action Plan to reduce mercury emissions within the TECE. The Plan stated that if the changeover was likely to exceed four days then "Thiess Services will implement steps to reduce mercury emissions within the TECE". Orica shut down the ECSs on 24 September 2011. It knew that the changeover would take more than four days. It expected ECS1 would be down for 11 days (until 5 October 2011) and ECS2 would be down for six days (until 30 September 2011). But it was not until 11 October 2011 that steps were taken to reduce mercury emissions within the TECE by installing a small ECS to remove mercury from the indoor air and laying polythene sheeting on the ground to reduce surface emissions.

116 The efficacy of these measures was confirmed by Orica who reported that once these measures were implemented, they were "very successful in reducing the indoor air concentrations ... and have likely contributed significantly to the reduction of fugitive emissions concentrations measured outside the TECE ... to below lower detection limits" (section 3.3 of the Best Available Technology and Best Environmental Practice report dated 4 November 2011).

117 Orica highlighted that before the Botany Mercury Incident, it had taken a number of steps to prevent the release of mercury vapour, namely, Orica had:

(a) prepared the Mercury Breakthrough Action Plan and the Ambient Air Monitoring Plan to minimise and monitor mercury emissions from the TECE, which were approved by the EPA and complied with by Orica;

(b) shut down the ECS units on 24 September 2011 to prevent elevated levels of mercury being discharged through the ECS, stacks and immediately notified the EPA of this fact;

(c) notified the EPA on 26 September 2011 of the steps that it was taking to minimise the risk of further mercury emissions from the TECE;

(d) increased the monitoring of fugitive mercury vapour emissions; and

(e) instructed Thiess to close all louvres, including the elevated louvres.

118 Nevertheless, Orica correctly conceded that further practical measures could have been taken to prevent the Incident from occurring.

119 In these circumstances, there were undoubtedly a significant number of practical measures available to Orica to avoid or mitigate the escape of mercury vapour from the TECE and thus avoid or mitigate the potential environmental harm. None of these measures was costly or difficult for Orica to implement. Orica's failure to implement these identified measures elevates the objective seriousness of the offence.

Control Over the Causes of the Harm

120 Section 241(1)(c) of the POEOA makes it clear that the Court must consider the extent to which Orica had control over the causes of the harm. Orica conceded that as the owner of the TECE and operator of the ECSs, it had control over the causes that gave rise to the commission of the offence.

121 However, Orica also emphasised that the TECE was designed, constructed and commissioned by Thiess under contract, and that Thiess was responsible for operating the TECE and ECSs during the initial phases until ECS operation was handed over to Orica on 26 August 2011. From that date, Thiess continued to be responsible for all activities such as opening and closing louvres and ducts on the TECE, which could only be done from inside the TECE by Thiess. Despite instructing Thiess, on 24 September 2011 and again on 26 September 2011, to close all louvres, some remained open at the time of the Botany Mercury Incident on 27 September 2011.

122 While the Court notes this fact and takes it into account, the fact remains that Orica had overall responsibility for the FCAP Remediation Project and ultimately had control over the causes giving rise to the Incident and thus the offence. In particular:

(a) Orica was the holder of Licence 2148 for the premises and was responsible for ensuring compliance with the licence conditions;

(b) Orica formally took over the operation of the ECSs from Thiess on 26 August 2011;

(c) from August 2011, Orica was responsible for overseeing the FCAP Remediation Project;

(d) from 24 September 2011, Orica carried out hand-held monitoring of the louvres at the TECE;

(e) Orica had control over the actions of Thiess. This was demonstrated by the fact that at various times both before and after 27 September 2011, it instructed Thiess to perform certain actions at the TECE; and

(f) Orica had control over the measures that could have been taken to avoid the offence. Thus Orica could have readily verified that Thiess had, as instructed, shut all the louvres and sealed all roof ducts.

Conclusion on Objective Gravity

123 Having regard to the circumstances of the case and all of the factors discussed above, I find that the offence in the present case is of low objective gravity.

Subjective Considerations

124 As stated above, determining an appropriate and proportionate sentence for the offence, the Court must take into account all factors that are personal to Orica, including factors in aggravation and factors in mitigation.

Aggravating Factors

Prior Criminality

125 As stated in the principal judgment (at [170]-[173]), Orica has a criminal history of environmental offences, including for breach of a condition of an environmental licence in 2005. I take this fact into account as an aggravating factor under s 21A(2)(d) of the CSPA.

Mitigating Factors

Prior Criminality

126 In light of Orica's environmental antecedents, it cannot be said that Orica does not have any prior criminal record so as to operate as a mitigating factor in determining the imposition of an appropriate sentence (s 21A(3)(e) of the CSPA).

Good Character

127 Orica submitted that the evidence demonstrates it is a good corporate citizen and, more specifically, that its recent investments in environmental improvements and its community consultation and support programs practically demonstrate its good corporate character.

128 In addition to the reasons given in the principal judgment (at [185]-[190]), Mr Stening deposed to Orica's engagement with the community surrounding the premises. It was his unchallenged evidence that Orica:

(a) has established a formalised Community Liaison Committee ("CLC"). The CLC is independently chaired and includes members of environmental groups, government, local industry and local residents. Orica also funds an Independent Monitoring Committee that provides specialist technical support to the CLC;

(b) established an HCB Community Participation and Review Committee at the Botany Industrial park;

(c) provides biannual community bus tours of the Botany site;

(d) publishes a monthly column in two local newspapers (Southern Courier and St George & Sutherland Shire Leader) in order to provide regular updates on works at the Botany site; and

(e) provides a dedicated "Botany Transformations Projects" website to provide information about the various remediation works at its Botany site.

129 Additionally, Mr Stening gave evidence about Orica's financial investment in environmental improvements and legacy contamination issues at the Botany site generally, which included commitments of $33 million for the FCAP Remediation Project itself, in addition to $20 million for the Botany groundwater project, $167 million for the groundwater treatment plant, $60 million for the HCB Repackaging Project, and $55 million for the Car Park Waste Encapsulation Remediation Project.

130 I therefore accept that Orica was a corporate person of good character at the date of this offence (s 21A(3)(f) of the CSPA).

Likelihood of Re-offending

131 Orica has undertaken a number of actions to minimise the chance of a similar incident occurring. As described in greater detail above, these include:

(a) the preparation of three Best Available Technology and Best Environmental Practice reports for the TECE. While these reports (as required by the EPA) set out the steps taken by Orica to prevent any immediate continuation, escalation or recurrence of the Botany Mercury Incident, they also reflect best practice for preventing any future similar incidents; and

(b) the undertaking of tests to evaluate and select the best type of impregnated activated carbon before selecting which to use as a replacement in the two ECSs, and then sourcing and replacing the carbon beds with sulphur-impregnated activated carbon, which had demonstrated the most significant capability to absorb and retain mercury vapour.

132 Orica's examination of the causes of the Incident and its acceptance that these practical measures would have prevented the harm, suggests that the likelihood of future re-offending is greatly reduced and that there are good prospects of rehabilitation. Accordingly, and notwithstanding the further six pollution incidents the subject of this suite of criminal proceedings, I find the likelihood that Orica will re-offend in future to be low, which should be taken into account as a factor in mitigation (s 21A(3)(g) of the CSPA).

Demonstrated Remorse

133 Orica has, in my opinion, demonstrated remorse with respect to the commission of this offence. The affidavits and oral testimony of Mr Winstone expressed regret for the incidents generally. Mr Winstone stated that he was "personally very disappointed that the incidents occurred". In addition, Orica tendered a formal letter from the Chairman of the Board of Orica Ltd, the parent company of Orica, wherein the Chairman, Mr Peter Duncan, apologised formally to the Court and to the public for each of the seven incidents.

Early Guilty Plea

134 Orica pleaded guilty to the charge on 27 November 2012, which was the second mention date for the matter. This was because at the first mention the prosecutor applied for an adjournment to obtain further expert evidence on liability. The utilitarian value of Orica's guilty plea was therefore not in any way diminished. Accordingly, Orica's early guilty plea should attract a maximum discount of 25% (ss 21A(3)(k) and 22 of the CSPA).

Assistance to Authorities

135 Orica cooperated fully with the EPA both in relation to the Incident investigation and in the production of an Amended Agreed Statement of Facts. This assistance is taken into account as a mitigating factor in Orica's favour (ss 21A(3)(m) and 23 of the CSPA).

Orica Agreed to Pay the Prosecutor's Costs

136 Orica has agreed to pay the EPA's reasonable legal costs as agreed or assessed. Additionally, Orica has agreed to pay the investigation costs incurred by the EPA in the sum of $109.64. I take this into account in the determination of the appropriate penalty to be imposed in these proceedings in accordance with the principles set out in the principal judgment (at [209]).

Conclusion on Subjective Considerations

137 The subjective circumstances of Orica operate to mitigate to a reasonable degree the penalty that would otherwise be imposed by the Court and I consider a total discount of 30% appropriate.

Sentencing Purposes: Denunciation, Retribution and Deterrence

138 The imposition of a sentence serves a number of purposes. As identified above, the relevant purposes listed in s 3A of the CSPA also inform the determination of an appropriate sentence. These include: punishment (s 3A(a)); both general and specific deterrence (s 3A(b)); community protection (s 3A(c)); making Orica accountable for its actions (s 3A(e)); denunciation (s 3A(f)); and recognition of the harm done to victims

139 (s 3A(g)).

140 The EPA submitted that both specific and general deterrence should be important sentencing considerations in the present case. At a general level, the EPA submitted that any fine imposed should be sufficient to cause others to take the positive precautions necessary to avoid offending.

141 The EPA submitted that specific deterrence was a significant factor in the circumstances of the present case because of the number of incidents being prosecuted in these consecutive proceedings and because of Orica's prior conviction for an environmental offence in 2005. The EPA contended that these circumstances demonstrated systemic problems in Orica's management and reporting systems requiring a substantial element of deterrence in the penalty to motivate lasting change within the organisation.

142 There is no doubt that the sentence imposed by the Court must be sufficient to specifically deter Orica from repeating the conduct that has resulted in the commission of the offence. It must also contain an element of general deterrence to promote the objects of the POEOA and to ensure that other environmental licensees with similar operations and responsibilities do not apprehend that such offences will be treated with relative impunity.

143 In the present case, I consider that there is a need for both specific and general deterrence for the reasons given in the principal judgment (at [213]-[217]).

144 The imposition of an appropriate sentence additionally serves the purpose of ensuring that retribution and denunciation are properly addressed. The sentence of this Court is a public denunciation of the conduct of Orica and must ensure that Orica is held accountable for its actions and is adequately punished. Accordingly, I also take these elements of sentencing into account.

Consistency in Sentencing

145 As stated in the principal judgment, a relevant consideration in sentencing is the existence of a general pattern of sentencing by the Court for offences such as the offence in question.

146 The pattern of sentencing against which the present case falls to be determined can be established by examining the relevant sentencing cases dealing with breach of licence offences pursuant to s 64(1) of the POEOA. These were examined in the principal judgment (at [223]) and are relied upon but not repeated here, other than to note that Orica placed specific reliance on Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131 (discussed in the principal judgment at [223(b)]).

147 Orica submitted, correctly, in my view, that although factually analogous, additional mitigating features in the present proceedings should operate in its favour to cause the Court to impose a lower monetary penalty than that imposed in Unomedical, including its early guilty plea and its expression of remorse.

The Totality Principle

148 The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences. Although Orica argued that the totality principle should be applied across all seven pollution incidents to cause a downward adjustment to the penalty to be applied in these proceedings, for the reasons given in the principal judgment, I do not agree (at [230]-[249]). I have concluded that each of the seven incidents must be considered separately for sentencing purposes and that the totality principle has no application to this case.

Conclusion on the Appropriate Penalty for the Botany Mercury Incident

149 Synthesising the objective and subjective circumstances of Orica, and having regard to the existing patterns of sentencing for an offence of this nature, I consider that the appropriate penalty is a monetary penalty.

150 The appropriate penalty for this breach of licence condition offence contrary to s 64(1) of the POEOA is $50,000 discounted by 30% to $35,000.

Environmental Project

151 As the parties requested, I will order Orica to direct the monetary penalty towards a specified environmental restoration and enhancement project pursuant to s 250(1)(e) of the POEOA, and to pay to the EPA's costs associated with monitoring and enforcing the carrying out of this project.

152 In the circumstances of the present case, I consider such an order to be appropriate. A fulsome description of the specified environmental project is annexed to this judgment at "A".

153 All future references to Orica's contribution towards this project will be accompanied by a reference, in the prescribed form referred to below, to the payment being part of the penalty imposed on Orica for the commission of this offence.

Publication Order

154 The parties submitted, and I agree, that it was also appropriate that the orders include a publication order pursuant to s 250(1)(a) of the POEOA.

155 In making this order, however, it is not the intention of the Court to cause Orica to publish a separate notice to that already required to be published persuant to the principal judgment (at [261(7) and (8)]).

Costs

156 Additionally, and as agreed, Orica is ordered to pay the prosecutor's investigation costs in the agreed amount and legal costs as agreed or assessed.

Orders

157 For the reasons provided above, the Court orders that:

(1) the defendant is convicted of the offence as charged;

(2) pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, the defendant is directed to pay to the City of Botany Bay Council, within 28 days of this order, the amount of $35,000 to contribute to the Bush Regeneration of Sir Joseph Banks Reserve project to remove weeds and regenerate native vegetation at Sir Joseph Park in Botany Bay. A description of the project is annexed at "A";

(3) all future references by the defendant to its funding of the Bush Regeneration of Sir Joseph Banks Reserve project shall be accompanied by the following passage (pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997):

"Orica Australia Pty Limited's contribution to the funding of the Bush Regeneration of Sir Joseph Banks Reserve project is part of a penalty imposed on it by the Land and Environment Court of NSW after it was convicted of an offence against s 64(1) (breach of licence condition) of the Protection of the Environment Operations Act 1997 (NSW)."

(4) pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 the defendant is to publicise a summary of the offence, of the circumstances of the offence and of the orders made against it, in the notice directed to be published at [261(7) and (8)] of the principal judgment, in the form and in the manner prescribed therein;

(5) the defendant is to pay the prosecutor's legal costs as agreed or assessed;

(6) pursuant to s 248(1) of the Protection of the Environment Operations Act 1997, the defendant is to pay the prosecutor's investigation costs in the sum of $109.64;

(7) the exhibits are to be returned; and

(8) liberty to restore on seven days' notice for the purpose of amending the form of any of the orders made above.

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Annexure A

Decision last updated: 28 July 2014