What has happened?
On 29 September 2023 the Land and Environment Court handed down its decision in Natural Resources Access Regulator v Kimber; Natural Resources Access Regulator v Kimber [2023] NSWLEC 101.
In this case the Court considered what sentences ought to be imposed upon two individuals who each pleaded guilty to offences under section 60B of the Water Management Act 2000 (WM Act).
For one of the first times ever in a case involving offences under the WM Act, the Court ordered that the charges against each defendant be dismissed under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) without proceeding to conviction.
The context in which the Court made these orders is considered below.
The facts
Proceedings were brought by the Natural Resources Access Regulator (NRAR) prosecutor against the two defendants for breaching the conditions of an access licence either as the licence holder (s 60B(2)) in the case of one individual or as the non-licence holder (s 60B(1)) in the case of the other individual, contrary to the WM Act.
The offences relate to the extraction of 95.18ML of water from the Murrumbidgee River on 13 separate days over a 24-day period by extracting water from the river when the flow of water was in the ‘Very Low Flow Class’ defined as 27 megalitres (ML) per day or less.
Under a previous licence condition, the defendants were required to cease pumping when the river height fell below 0.58m at the Billilingra Gauge and the river flow did not exceed 15 ML per day, however this condition was subsequently altered by the NRAR. By their own admission, the defendants failed to take note of the updated condition.
Guilty pleas were entered for all charges. However, after considering various mitigating and aggravating factors, Pain J ordered that the proceedings be dismissed under s 10(1)(a) of the CSP Act.
Section 10(1)(a) of the CSP Act
Section 10(1)(a) of the CSP Act relevantly states that:
(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.
In this case, the defendants submitted that the Court should make orders under section 10(1)(a) dismissing the charges against them and addressed the considerations set out in section 10(3)(a) to (d) as follows (at [95]):
“Each of the defendants aged 74 and 46 has no criminal record and on the evidence is of unblemished good character (s 10(3)(a));
The offences were not trivial (s 10(3)(b)). The offences are at the very low end of the spectrum of water taking offences under the WM Act. It is not necessary to establish triviality. The conclusion that an offence is not to be categorised as trivial does not disentitle the Court from exercising its discretion under s 10(1): Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213 and R v Paris [2001] NSWCCA 83 at [48]-[49]. Other relevant considerations outweigh any finding the offences were not trivial.
Extenuating circumstances have been referred to in this case and strongly support disposition pursuant to s 10(1) of the CSP Act (s 10(3)(c)).”
Consideration of the defendants’ evidence
Each defendant’s affidavit evidence outlined their good character (supported by numerous character references) and immense contrition for their actions.
Furthermore, a lack of prior criminal convictions, regular participation in the community and industry, and utmost respect for the environmental and societal responsibilities within the farming industry were also considered by the Court to mitigate heavily in favour of an order under section 10(1)(a) of the CSP Act.
In considering the objective seriousness of the offences, the Court noted various factors including the accidental (as opposed to intentional, reckless or negligent) nature of the defendants’ actions and the fact that the offences were committed over a relatively short time span (as opposed to other cases where the period of offending was over the course of one or more years).
The Court accepted the defendants’ evidence that they would have complied with the updated licence condition had they been aware of the change. While this was not necessarily a mitigating factor, given that the defendants were responsible for compliance with their licence conditions, the Court accepted the defendants’ clear contrition. Accordingly, “no moral culpability” arose in the defendants’ respective states of mind.
Section s 364A of the WM Act set out matters which a court is required to consider when imposing a penalty for an offence under the Act. These matters include, among other things, whether the offence caused harm to the environment or occurred during a severe water shortage or extreme event.
The Court found no evidence that the unlawful extraction affected other person’s rights or caused actual or likely environmental harm, nor were the offences committed during a severe weather shortage or extreme event.
Further, noting the low objective seriousness of the defendants’ actions in this case, the Court agreed with the defendants’ submission that such offences should have been prosecuted in the Local Court where the maximum penalty is $22,000 for each offence rather that the Land and Environment Court where the maximum penalty is $500,500.
Further information
For further information please contact Natasha Nadj, Associate Director, on (02) 8005 1411 or natasha.nadj@bicksteele.com.au.