MONOGRAPH 40 volume 1

vi Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW Every environmental offence fits somewhere along a well-defined continuum of criminal liability. The continuum ranges from absolute liability offences through to strict liability (regulatory offences) to Tier 1 offences which require either proof of the fault ingredient “negligently” or proof of a guilty mind (mens rea) ingredient, namely, “wilfully”. x The Protection of the Environment Operations Act 1997 ( POEO Act ) persists with the mens rea ingredient “wilfully” found in its statutory predecessor. xi In the history of the LEC, there has been only one case in which an offender was charged and convicted of wilfully committing an environmental offence. xii In 1992, well before the enactment of the POEO Act , “wilfully” was regarded by the Model Criminal Code Officers Committee (MCCOC) as an antiquated concept and abandoned for the purposes of the Model Criminal Code. xiii For these reasons, the existing hierarchical structure of environmental offences is ripe for review, as is the prosecution’s extremely limited charging of Tier 1 offences. Charging practices A Tier 1 environmental offence with the ingredient of “negligently” requires the prosecution to prove that the alleged offender’s conduct was negligent when measured against an objective standard. xiv MCCOC recorded and acknowledged a view that NSW courts applied a lesser standard of criminal negligence for environmental offences than the common law offence of manslaughter. xv The Committee accepted that the degree of negligence required for conviction is related to the nature of the offence. xvi Despite clear statements from the Court of Criminal Appeal (CCA) as to what criminal negligence entails for environmental offences, the dearth of such cases coming before the LEC (only nine in the 15-year study period) demonstrates that it is rarely charged by the prosecution. Instead, prosecuting agencies almost exclusively rely upon strict liability Tier 2 offences under the POEO Act to secure a finding of guilt. There are well-recognised benefits of utilising strict liability offences in the area of environmental crime. xvii The prosecution’s extensive reliance upon strict liability offences in the LEC avoids any prospect of a costs order against it on the basis that the defendant is acquitted of a Tier 1 offence. xviii Given the “absolute discretion” of the prosecutor, the LEC (like any other criminal court) has no control over the charges brought before it. xix Prosecuting agencies bringing criminal matters before the LEC do not have a practice of using Tier 1 and Tier 2 offences as alternative charges. However, the practice of alternative charging is standard in other courts exercising criminal jurisdiction. xx Consequently, the existing statutory hierarchy for environmental protection offences, as envisaged by Parliament, effectively, is not being used. x Protection of the Environment Operations Act 1997 ( POEO Act), ss 115–117. Seldom has Parliament created an environmental offence with knowledge as an ingredient. For example, the offence against s 144AA(2) of the POEO Act requires proof of knowledge in the supply of false or misleading information about waste and carries a higher maximum penalty. This offence was created on 1 October 2013. xi Environmental Offences and Penalties Act 1989 ( EOP Act ) (rep), ss 5(1), 6(1), 6(2). xii EPA v Gardner (unrep, 7/11/97, NSWLEC). See Case study 1 on pp 51–52. xiii See Criminal Law Officers Committee of the Standing Committee of Attorneys-General (also later known as the Model Criminal Code Officers Committee (MCOCC)), Model Criminal Code, Chapter 2: General principles of criminal responsibility: final report , December 1992, p 29. Also see I Leader-Elliot, The Commonwealth Criminal Code: a guide for practitioners , December 2002, pp 49 and 203 at www.ag.gov.au/Publications/Documents/CriminalCodePractitionerGuidelinesMar ch2002/GuideforPractitioners.pdf, accessed 16 May 2017. xiv NSW Sugar Milling Co-op Ltd v EPA (1992) 59 A Crim R 6 per Hunt CJ at CL at 7 and Allen J at 12. xv See reference to NSW Sugar Milling Co-op Ltd v EPA in Model Criminal Code, Chapter 2: General principles of criminal responsibility, above n xiii, p 33. xvi The words “for the offence in issue” were specifically added to the Model Criminal Code, Model Criminal Code, Chapter 2: General principles of criminal responsibility , above n xiii, p 22 at 203.4. See also p 33 for commentary on 203.4. xvii See Australian Law Reform Commission (ALRC), “Chapter 12: Strict and Absolute Liability” in ALRC, Traditional Rights and Freedoms – Encroachment by Commonwealth Laws, Issues Paper 46, 2014 at www.alrc.gov.au/sites/default/files/ pdfs/publications/ip46_wholedoc_2.pdf accessed 16 May 2017. xviii See Costs as a sentencing factor at [1.3]. xix Maxwell v The Queen (1996) 184 CLR 501 per Dawson and McHugh JJ at 514, 534; Likiardopoulos v The Queen (2012) 247 CLR 265 per French CJ at [1]–[2]; Elias v The Queen (2013) 248 CLR 483 per French CJ, Hayne, Kiefel, Bell and Keane JJ at [33]. xx James v The Queen (2014) 253 CLR 475 per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ at [14].