MONOGRAPH 40 volume 1

143 Research monograph 40 3. Discussion It is an incontrovertible fact that costs are a substantial component of punishment in the LEC. A strong argument can be made to further increase the transparency of the sentencing process in the LEC by ensuring that all monetary costs to be paid by the offender are known to the court at the time of sentencing and are recorded as part of the judgment. This may involve a change in sentencing practices. This would involve enacting statutory provisions similar to those which governed costs in the first version of s 52 (rep) of the LEC Act and, in particular, requiring that “the amount so ordered to be paid for costs shall in all cases be specified in the conviction or order”. 762 Until such time as reforms are made, the full and true economic deterrent of a criminal prosecution and the consequent sanctions for environmental offending will remain unknown to like-minded offenders, the public and critics of the LEC. Achieving “individualised justice” in sentencing is also compromised because a substantial and crucial element of the pecuniary punishment is not known by the LEC at sentence to better inform the court’s decision of the appropriate penalty. The quantum of costs was not available to the LEC in a significant proportion of LEC cases. For example, one-third of pollute waters offences in the study period included an order that the defendant was to pay the prosecutor’s reasonable legal costs which were still awaiting assessment or agreement. Fortunately, this situation appears to have improved over time: only 15% of pollute waters cases under the current sentencing regime of the POEO Act had unquantified orders for costs, compared with 42% under earlier provisions of the POEO Act , and 43% of unquantified costs orders under the CW Act (rep). 3.3 Criminal liability A good starting point for understanding how criminal liability is framed for environmental offences is the landmark Canadian Supreme Court decision in 1978 of R v Sault Ste. Marie . 763 It was considered by the High Court of Australia in He Kaw Teh v The Queen 764 in the context of a Commonwealth drug importation offence. In dealing with a charge of discharging, or permitting the discharge, of refuse into public waterways causing pollution, the Canadian Supreme Court distinguished three categories of offences: offences that require some state of mind (mens rea) as an element of the crime — typically implied by the use of language in the statute such as “knowingly” or “intentionally”; offences that do not require the proof of mens rea — the act alone is punishable (subject to a due diligence defence); and, absolute liability offences — also not requiring proof of mens rea but with no defences available. 765 The dumping offences of causing water pollution in R v Sault Ste. Marie were held to be strict liability offences, not requiring proof of mens rea. The distinctions drawn in R v Sault Ste. Marie regarding the casting of environmental offences remain pertinent for the charging, prosecution and punishment of environmental offences committed in 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”. 766 The POEO Act persists with the mens rea ingredient “wilfully” found in its statutory predecessor. 767 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. 768 Well before the enactment of the POEO Act , “wilfully” was 762 Section 52(2). Section 52 of the LEC Act was repealed by the Justices Legislation Repeal and Amendment Act 2001 which commenced 7 July 2003. 763 [1978] 2 SCR 1299. 764 (1985) 157 CLR 523 per Gibbs CJ (Mason J agreeing) at 533–534, Dawson J at 592. 765 [1978] 2 SCR 1299 at 1325–1326. 766 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. 767 Environmental Offences and Penalties Act 1989 (rep): ss 5(1), 6(1), 6(2). 768 EPA v Gardner (unrep, 7/11/97, NSWLEC).