MONOGRAPH 40 volume 1

99 Research monograph 40 2. Findings Figure 9 shows the average monetary cost to pollute waters offenders based on the sum of the ordered fine amount and prosecutor’s costs (where known). These costs are organised by the sentencing regime in force at the time of the commission of the pollute waters offence: between 1991 and 1999, the applicable legislation was the CW Act ; from 1 July 2002 to the present, the POEO Act applied, with increased penalties effective from 1 May 2006. In the 1990s, under the CW Act , the average fine for a single pollute waters offence was around $17,000 with prosecutor’s costs adding, on average, another $9,000 to the total payment ordered by the court. In the period from August 1999 to April 2006, when the POEO Act operated under lower than the current maximum penalties for pollute water offences (refer to Table 12 ), the average fine amount was almost $25,200 with prosecutor’s costs adding, on average, another $22,000 to the total payment ordered by the LEC. The current version of the POEO Act , which commenced on 1 May 2006, carries significantly higher fines and monetary costs for water pollution offences. The average fine under this sentencing regime was more than $83,300 with prosecutor’s costs adding, on average, approximately $57,700. Thus, the average total expense incurred by an offender for a single pollute waters offence under the present sentencing regime, based on cases before the LEC up to 2015 which were sentenced by way of fine, was just over $141,000. From the CW Act to the earlier version of the POEO Act , the average fine increased by almost 150% and mean prosecution costs increased by almost 250%. From the earlier version of the POEO Act to its current manifestation (with a fourfold increase in the maximum penalty), average fines more than tripled and mean prosecution costs increased by more than 260%. Over the 15-year study period, maximum penalties for a Tier 2 pollute waters offence increased substantially: by 800% in the case of an offence committed by a corporation; and by 400% in the case of an offence committed by an individual. 567 At the same time, the average fine has increased by almost 490%, and average prosecutor’s costs have increased by close to 640%. Over the 15-year study period, the average total pecuniary payment imposed on a pollute waters offender for a single offence has increased from around $26,000 to $141,000 — an increase of 539%. The vexed relationship between the sentence of a fine and the quantum of the prosecutor’s costs is further highlighted once the average fine amount is calculated for a pollute waters offence for cases where the prosecutor’s costs were not available at time of sentencing. Fines were smaller under the CW Act , where the prosecutor’s costs were unspecified: the average fine with and without the associated costs under the CW Act was $17,125 and $10,833, respectively. Similarly under the inaugural version of the POEO Act , the fine generally tended to be smaller where prosecutor’s costs remained unquantified — the average fine where costs were known was $25,190, and where costs remained unknown was $22,169. Under the current version of the POEO Act , fines were generally lower where costs were unknown: $43,333, compared with an average fine of $83,346 where prosecutor’s costs were known. Not having the prosecutor’s costs available at time of sentencing would appear to make the LEC more cautious in terms of setting the quantum of a fine, so as to not order a composite pecuniary penalty that is needlessly excessive or out of proportion to the seriousness of the offence. After all, costs can, and do, affect the amount of a fine — even where they are not available to the court — as they are recognised by the court as an “important aspect of the punishment”. 568 567 See Table 12 . 568 EPA v Barnes [2006] NSWCCA 246 at [78] and see Appendix D for LEC cases applying Barnes .