MONOGRAPH 40 volume 1

94 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW A number of LEC judgments around the time reveal that some LEC judges were not familiar with the legitimate charge of “cause waters to be polluted” under s 120(2) as brought before them by the prosecutor. 537 While it did not affect the judgment or the sentence, s 120(2) charges in at least three separate LEC cases were “converted” to s 120(1) charges and notes to this effect were provided in the judges’ sentencing remarks. 538 The alteration of charges in these instances were unnecessary and constituted a possible error in law. The rulings of Talbot J in EPA v Rail Infrastructure Corp 539 and EPA v Pancorp Aust Pty Ltd  540 highlight the distinction between s 120(1) and s 120(2) and show how the two sub-sections were previously able to be legitimately applied to co-offenders (dealt with in separate hearings). The underlying facts in these cases were that Pancorp polluted waters on or about 2 July 2000 and pleaded guilty to three charges under s 120(1) of the POEO Act . At the time of the offence, Pancorp was contracted by the Rail Infrastructure Corporation (RIC) to apply herbicides to railway lines and sidings (but not bodies of water) from a hi-rail vehicle owned by Pancorp in accordance with RIC instructions. The proceedings against Pancorp were heard separately and immediately following the proceedings against RIC. RIC also entered a plea of guilty to each of three charges under s 120(2) of the Act (“ cause any waters to be polluted”). Both Pancorp and RIC were convicted and each received fines totalling $32,000 and ordered to pay the legal costs and other expenses of the EPA. Schedule 2, cl 6 of the Environment Protection Legislation Amendment Act 2002 removed the previous s 120 and replaced it effectively with what is legislated today (at date of publication) in terms of the prohibition of pollution of waters, namely: • s 120(1): a person who pollutes any waters is guilty of an offence • s 120(2): pollute waters includes cause or permit any waters to be polluted. The De Simoni principle and pollute waters offences The maximum penalties available to the court for the Tier 1 s 116 offence and the Tier 2 s 120 offence clearly differentiate these offences along a continuum of objective seriousness, with the latter offence considered less serious than the former (see Table 12 ). The operation of the De Simoni principle precludes the consideration of whether a pollute waters offender acted wilfully, negligently or recklessly in committing an offence under s 120. Where charged with a less serious offence, the court must not take into account a factor, or factors, that would constitute element(s) of a more serious offence. 541 Furthermore, a finding of wilfulness or recklessness under s 120 “would be tantamount to finding an element of aggravation that would warrant conviction for a more serious offence, namely, an offence against s 116”. 542 537 A charge of an offence under s 120(3) of the Act (“permit any waters to be polluted”) appears not to have ever been used. 538 Pearlman (then) CJ of the LEC in EPA v Boral Resources (NSW) Pty Ltd (2002) 123 LGERA 279; [2002] NSWLEC 232 incorrectly amended a legitimate charge for a s 120(2) offence entered by the prosecutor, stating at [3]: I have noted that the summons, as filed by the prosecutor, states the charge as being an offence against s 120(2) of the POEO Act . That is not a correct description of the offence. Rather, it is properly described as an offence against s 120(1) which stipulates that a person who pollutes any waters is guilty of an offence. Section 120(2) provides that “pollute waters” includes cause or permit any waters to be polluted. The offence was committed on, or about, 24 May 2001: that is in the period when a s 120(2) charge could be lawfully laid. Similarly, in EPA v TransGrid [2003] NSWLEC 18, Lloyd J stated at [2] that: “[t]he summonses allege offences against s 120(2) of the PEO Act . This appears to be a misnomer. There is no offence created by s 120(2)”. Lloyd J also cites Boral . The offence by TransGrid also was committed in the period when a s 120(2) “cause” water pollution charge was lawful. In EPA v Ramsey Food Processing Pty Ltd [2003] NSWLEC 82 (revised 30/04/2003), Cowdroy J reinforced the error by making reference to Lloyd J in TransGrid at [4] and by stating: “[t]he Court notes that no offence arises under s 120(2) of the POEO Act . The offence is created by s 120(1) of such Act”. EPA officers investigated this particular pollute waters offence on 3 and 4 October 2001. This again means that a charge under s 120(2) was legitimately put before the LEC. Perhaps surprisingly (or not), the EPA prosecutor in these three cases did not speak up to defend the legitimacy of the original charge laid under s 120(2) of the POEO Act . 539 (2002) 19 LGERA 409; [2002] NSWLEC 37. 540 [2002] NSWLEC 38. 541 ibid at [220]. 542 Furthermore, Craig J stated in Warringah Council v ProjectCorp Aust Pty Ltd [2015] NSWLEC 141 at [219], that such an approach “would offend the dictum of Gibbs CJ (Mason and Murphy JJ agreeing) in De Simoni at 389”.