MONOGRAPH 40 volume 1

144 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW regarded by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys- General as an antiquated concept and abandoned for the purposes of the Model Criminal Code. 769 The use of “wilfully” by the NSW Parliament in the POEO Act in 1997 did not reflect the prevailing views about framing criminal liability at the time. Given the antiquated nature of “wilful” perhaps other more modern concepts of liability, such as intention or recklessness, should be considered in the framing of Tier 1 environmental offences. Recklessness is established if the fact finder is satisfied beyond reasonable doubt that the damage is caused recklessly: ie, the accused realised that some damage may possibly result by his/her actions yet he/she went ahead and acted as he/she did. In short, the existing statutory hierarchy for environmental offences under the POEO Act is ripe for review. 3.4 Charging practices In assessing whether criminal legislation enacted for environmental crime is effective, it is necessary to take into account the prosecutor’s charging practices. It is well established that the prosecutor’s selection of the charge has a real bearing on the sentence. 770 The LEC has no control over which charge is brought by the prosecution, except where there is an abuse of process. 771 The selection of the charge is within the “absolute discretion” of the prosecutor. 772 The rationale for this is to maintain the independence and impartiality of the judicial process in hearing and determining criminal matters by keeping separate and independent the executive power of the prosecutor and the judicial powers of the court. 773 The chief statutes for the prosecution of environmental offenders are the POEO Act and the EPA Act . The POEO Act is the principal statute dealing with environmental pollution defining criminal offences in relation to air, water, land and noise pollution. 774 The EPA Act regulates competing land use in NSW and deals with development applications and other planning-related issues, including breaches of environmental planning laws. 775 The POEO Act has a three-tiered system of offences with differential levels of jurisdictional responsibility and associated penalties. 776 Tier 1 offences are the most serious of environmental offences, involving wilful or negligent conduct that causes, or is likely to cause, harm to the environment. 777 Tier 1 offences carry the highest maximum penalties including up to seven years’ imprisonment for an individual. Proceedings for a Tier 1 offence 769 The Standing Committee of Attorneys-General established the Criminal Law Officers Committee (also later known as the Model Criminal Code Officers Committee (MCCOC)) in order to promote uniformity in law between the States and Territories. The Committee was formed following the Review of Commonwealth Criminal Law by the “Gibbs Committee” which, in 1990, released its interim report, Principles of Criminal Responsibility and Other Matters (“the Gibbs report”). The Criminal Law Officers Committee (also known as MCCOC) authored Model Criminal Code, Chapter 2: General principles of criminal responsibility: discussion draft , June 1992, and Model Criminal Code, Chapter 2: General principles of criminal responsibility: final report , 1992. As to the abandonment of “wilful blindness”, see Model Criminal Code, Chapter 2: General principles of criminal responsibility: discussion draft , p 29. Also see discussion of “wilful” in I Leader-Elliot, The Commonwealth Criminal Code: a guide for practitioners , 2002, pp 49 and 203 at www.ag.gov.au/Publications/Documents/CriminalCodePractitionerGuide linesMarch2002/GuideforPractitioners.pdf, accessed 16 May 2017. 770 Elias v The Queen (2013) 248 CLR 483 per French CJ, Hayne, Kiefel, Bell and Keane JJ at [34]. 771 Maxwell v The Queen (1996) 184 CLR 501 per Dawson and McHugh JJ at 514 and Gaudron and Gummow JJ at 534. In that case the trial judge had rejected a plea to a charge of manslaughter on the basis that a murder charge was more appropriate. The High Court held that the judge had no power to reject the plea. 772 Elias v The Queen (2013) 248 CLR 483 per French CJ, Hayne, Kiefel, Bell and Keane JJ at [33]. 773 Likiardopoulos v The Queen (2012) 247 CLR 265 per French CJ at [2]; Jago v District Court (NSW) (1989) 168 CLR 23 per Brennan J at 39. 774 POEO Act , Ch 5. 775 For example, ss 76A, 76B and 125 of the EPA Act . 776 Outside the study period, in mid-2015, changes to the EPA Act also created a three-tiered system of penalties for development and planning offences, classified according to the seriousness of the offence and the culpability of the offender. New maximum penalties applied to each tier. In contrast with Tier 1 offences under the POEO Act , proceedings for Tier 1 offences under the amended EPA Act (s 125A) may be taken before the Local Court (as well as the LEC in its summary jurisdiction): s 127(1). The commencement date for these (and other) changes to the EPA Act was 31 July 2015. 777 POEO Act , ss 16(2), 115(1), 116(1), 117(1). See also the use of “wilfully” in s 112 for the offence of “wilfully delays or obstructs” a person who is carrying out any action in compliance with an environment protection notice.