MONOGRAPH 40 volume 1

120 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW Remediation costs There were six cases where the LEC made revegetation orders. In five cases, the cost of the regeneration work was not given, estimated or otherwise indicated. The dollar value of the one costed revegetation order was just under $35,000. Prosecution costs 658 In 56% (14 of 25) of cases, prosecutor costs were not assessed (not available) at the time the offender was sentenced. Where known (n=11), the prosecutor’s costs averaged at $31,348 (median: $13,216). This is more than double the average fine amount. Prosecutor’s costs ranged from $4,500 to a high of $80,000. 659 “Total” costs The average “Total” cost to an offender convicted of unlawfully removing or damaging a tree where a fine was issued and prosecutor’s costs were specified (n=11) was $47,939 (median: $24,216) and ranged from $6,000 to $125,000. Prosecutor costs represented, on average, almost two-thirds (65.4%) of the “Total” payment ordered on offenders who breached TPOs, and ranged from 44% to over 83% of the “Total” cost incurred by these offenders. 2.4.7 An overview of costs for environmental planning offences Figure 11 presents information on the average fine amount, cost of prosecution and environmental payment amount for the two most common environmental planning offences dealt with by the LEC: “Development without consent” under s 76A of the EPA Act , and “Offend against direction or prohibition” under s 125 of the same Act. 660 At the time of this study, the former offence carried a maximum penalty of $110,000, while the maximum penalty for the latter was $1.1 million (with an additional daily fine of $1,000 for a continuing offence). Fine amounts for s 76A offences averaged at over $33,500, approximately double that for s 125 offences (despite the maximum penalty for the latter offence being 10 times higher). However, there appeared to be an increased cost associated with prosecuting s 125 offences, which was on average 10% higher than for the s 76A offences. This is probably more a function of the “drag net” provisions of s 125 offences which encompasses almost all contraventions of the EPA Act and which range from minor matters (eg not complying with a development application) to more serious criminal conduct (eg s 75D offence (repealed): “Minister’s approval required for projects”). Offences of the latter kind are likely to demand more complex investigations and lengthier prosecutions. Both the average “total” pecuniary amount for s 76A offences (approximately $59,000) and that for s 125 offences ($46,000) were well below the jurisdictional limit of the Local Court when imposing a fine. Furthermore, noting again the assessed level of objective seriousness of these environmental planning offences by the court, 62% of development without consent offences and 68% of offend against direction or prohibition offences were regarded by the LEC as being of low objective seriousness. 658 Where known, includes all prosecutor’s costs and expenses and any investigative costs. 659 Manly Council v Taheri [2008] NSWLEC 314; n 635 and n 637 contain relevant information on this case. 660 Significant increases to the maximum penalties for offences under the EPA Act commenced on 31 July 2015 and apply to offences committed after this date, Planning and Environment NSW, Commencement of provisions: offences, penalties and enforcement (Planning Circular PS 15-004, 31 July 2015) at www.planning.nsw.gov.au/Policy-and-Legislation/~/ media/0E2FF1073E344851964EE4D3B9E72B58.ashx, accessed 16 May 2017. None of the environmental offences examined in this study were committed after the amendment date and thus were subject to the old maximum penalty of $1.1 million.