MONOGRAPH 40 volume 1

145 Research monograph 40 3. Discussion may be brought before the LEC in its summary jurisdiction, although the maximum period of imprisonment that may be imposed in that court is two years. 778 No environmental offender during the 15-year period examined received a sentence of full-time imprisonment for an offence under the POEO Act . The EPA and other prosecuting authorities, such as local councils, have rarely charged Tier 1 offences under the POEO Act . This Act was enacted almost two decades ago and yet, only nine Tier 1 offences were identified in the 15-year study period. 779 It is not clear why this is the case but it might be because there is a perception on the part of prosecutors that criminal negligence is hard to prove beyond reasonable doubt. Criminal negligence has certainly been misunderstood. One commentator held the view that liability related to the “civil standard” of negligence. 780 A Tier 1 offence based on negligence requires the application of an objective test as explained by the CCA appeal in NSW Sugar Milling Co-Op Ltd v EPA 781 and later in EPA v Ampol Ltd . 782 The prosecution must prove that the risk of environmental harm was foreseeable to a reasonable person in the position of the defendant. 783 The prosecution is not required to prove “whether the defendant subjectively foresaw the risk”. 784 The fact finder must conclude beyond reasonable doubt that the accused’s conduct was negligent to such a degree as to warrant punishment by the criminal law. Each case is determined according to its particular circumstances. It is important to note the MCCOC’s view of criminal negligence as it is applied to environmental offences. It acknowledged that NSW Sugar Milling Co-Op Ltd v EPA set a lower standard of criminal negligence for environmental crime than that required to be proved for manslaughter by criminal negligence. 785 The Committee had, in its earlier Discussion Paper, used a definition “based closely on [the manslaughter case of] Nydam v R [1977] VR 430”. However, in its final report the Committee accepted, with specific reference to NSW Sugar Milling Co-Op Ltd v EPA ) and R v Buttsworth 786 that: the degree of negligence required for conviction is related to the nature of the offence. 787 In R v Buttsworth , the CCA held that the offence of culpable driving causing death under s 52A of the Crimes Act 1900 was “a species of negligent driving of less gravity than negligent driving appropriate to manslaughter”. 788 This view remained the law in NSW until it was overturned by the High Court in King v The Queen . 789 In short, there is a lower standard of criminal negligence that applies to Tier 1 environmental offences than to manslaughter. , 778 Alternatively on indictment before the Supreme Court. To date, not a single environmental offence has been dealt with by the Supreme Court. Tier 1 offences cannot be dealt with by the Local Court as the maximum penalty for Tier 1 offences (s 119) exceeds the jurisdictional limit of the Local Court. 779 Including under the POEO Act ’ s predecessor, the EOP Act (rep). 780 Z Lipman, “Old wine in new bottles: difficulties in the application of general principles of criminal law to environmental law” in N Gunningham, J Norberry and S McKillop (eds), Environmental crime , Australian Institute of Criminology, 1995, p 31. The author opined that: “‘negligence’ could mean any one of ‘gross’ negligence (as associated with the traditional criminal law), the civil standard, or some statutory half measure depending on the circumstances of the case”. The author goes on to state that in EPA v Ampol Ltd (1993) 81 LGERA 433, “it seems that Pearlman CJ [of the LEC] applied the civil standard” (pp 4–5). 781 (1992) 59 A Crim R 6. 782 (1993) 81 LGERA 433. Ampol unsuccessfully appealed in Ampol v EPA (unrep, 26/10/95, NSWCCA). 783 NSW Sugar Milling Co-op Ltd v EPA (1992) 59 A Crim R 6 per Hunt CJ at CL at 7 and Allen J at 12. As to manslaughter, see R v Lavender (2005) 222 CLR 67 at [60]; Patel v The Queen (2012) 247 CLR 531 per French CJ, Hayne, Kiefel and Bell JJ at [88]. 784 EPA v N (1992) 26 NSWLR 352 per Hunt CJ at CL at 359. 785 Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, Chapter 2: General principles of criminal responsibility: final report , December 1992, p 33. Also see above n 769. 786 [1983] 1 NSWLR 658 at 674 per O’Brien CJ of Cr D, Street CJ and Nagle CJ at CL agreeing. 787 See above n 769, p 33. 788 [1983] 1 NSWLR 658 at 674 per O’Brien CJ of Cr D, Street CJ and Nagle CJ at CL agreeing. 789 (2012) 245 CLR 588. The court held that the offence of dangerous driving causing death does not require the Crown to prove an element of negligence. The concept of negligence “has no role to play” for the offence of dangerous driving: King v The Queen per French CJ, Crennan and Kiefel JJ in a joint judgment at [45]. Bell J agreed with some aspects of the majority judgment but dissented on the negligence point and the orders. Heydon J agreed with Bell J.