MONOGRAPH 40 volume 1

111 Research monograph 40 2. Findings Penalties reflect “the community’s stern policy against pollution”. In the context of this maximum penalty, the fine to be imposed must be sufficient to deter others, particularly businesses, from offending rather than treating the risk of being caught and receiving a fine as a “cost of business”: 609 An offender who operates a business unlawfully, such as unlawfully transporting and dumping waste without incurring the necessary costs and expenses for transporting waste lawfully and depositing it at a place that can lawfully be used as a waste facility, secures an unfair advantage compared to the offender’s law abiding competitors who incur the costs and expenses of operating lawfully. The offender has been unjustly enriched. Punishment is necessary to remove that unjust enrichment from the offender and so secure a just equilibrium — a level playing field — on behalf of those who are willing to be law abiding. 610 The moral condemnation of dumping waste has been emphasised by recent legislative amendments regarding repeat waste offenders and increasing the penalties prescribed for penalty notice offences, including waste offences. 611 The unlawful dumping of waste poses a significant problem for local councils and the EPA, with considerable resources devoted to combating it. 612 Landowners who have waste unlawfully deposited on their land often bear significant clean-up costs which may not be recovered given that the origins of the waste and the offender committing the offence often will remain unknown and unidentified. 613 The courts have repeatedly stated, when sentencing for environmental offences, that the sentence of the court needs to be of such magnitude as to change the economic behaviour of persons in determining whether to comply with or contravene environmental laws. Manifestly, it should not be cheaper to offend than to prevent the commission of the offence: Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains by offending. The amount of any fine needs to be such as will make it worthwhile to incur the costs of complying with the law and undertaking the necessary precautions. The amount of the fine must be substantial enough so as not to appear as a mere licence fee for illegal activity. In this way, the sentence of the court changes the economic calculus of persons who might be tempted not to comply with environmental laws or not to undertake the necessary precautions. Compliance with the law becomes cheaper than offending. Environmental crimes become economically irrational. 614 Waste offences and prosecution costs Offenders who commit waste offences are typically charged with more than one offence. The data revealed that of 11 of the 15 (73%) waste offenders convicted under the current sentencing regime of the POEO Act committed more than one offence. Calculating prosecution costs as a percentage of the principal penalty would give a distorted impression because of the operation of the principle of totality. Where an offender has committed more than one offence, the principle of totality requires the court to impose a penalty to reflect the total criminality of the offender. Adding two or more sentences which may individually be appropriate may result in a total sentence which is excessive, having regard to the totality of the criminality. 615 Fines cannot be made “concurrent” unlike imprisonment. The orthodox approach to totality requires the court to assign an appropriate fine for each offence, adjust each amount downwards, and then aggregate each to determine a 609 ibid citing Axer Pty Ltd v EPA (1993) 113 LGERA 357 at 359. 610 Bankstown City Council v Hanna [2014] NSWLEC 152 per Preston CJ of the LEC at [149]. 611 ibid at [144]–[145]. 612 EPA v Hanna [2010] NSWLEC 98 per Craig J at [42]. 613 ibid. 614 Bankstown City Council v Hanna [2014] NSWLEC 152 per Preston CJ of the LEC at [152] (citations removed). 615 R v Holder [1983] 3 NSWLR 245 per Street CJ at 260.