MONOGRAPH 40 volume 1

146 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW This lower standard of liability for negligence, compared with that for manslaughter, has not translated into prosecutions for Tier 1 environmental offences either in the context of charging directors of corporations or, as put in the EPA prosecution guidelines , those with “actual control or ability to influence the conduct of the corporation in relation to its criminal conduct”. 790 The guidelines further state: As a general policy, the EPA will institute proceedings [against officers of corporations] under section 169 [of the POEO Act ] only where there is evidence linking a director or manager with the corporation’s illegal activity. That link need not necessarily be of a positive (intentional) character but could be of a negligent nature. 791 Prosecutors bringing criminal matters before the LEC very rarely charge Tier 1 criminal negligence and prefer to charge Tier 2 offences. Tier 2 offences are often, but not always, strict liability offences. 792 The prosecution does not have to prove as part of the ingredients of the offence that the defendant was negligent or intended to commit the offence. Notably, there were 35 alleged offenders in this study who pleaded not guilty to a principal Tier 2 offence. However, in all 35 cases, there was a guilty finding. While low prosecution costs are viewed as another professed benefit of strict liability offences, this could not be said to be the case, generally speaking, for Tier 2 offences prosecuted in the LEC. However, given that there is a perceived or real risk of not recovering sizeable prosecutor’s costs through the Local Court, the prosecuting agency may prefer to bring a charge for an environmental offence before the LEC. The discretionary power to substantially reduce the costs payable by the defendant is evident in the Ballina Local Court case of EPA v Feodoroff . 793 In this matter, the EPA received only 13% of the legal and investigative costs it originally sought to claim. Although the prosecutor forfeits its chance of securing a conviction for a more serious Tier 1 offence by electing to prosecute a charge in the LEC for a lesser offence Tier 2 offence carrying a lower maximum penalty, the chances of securing a conviction is almost certain. In a sense, there is no gamble for the prosecuting agency. 794 So too is the high probability of the prosecutor recouping its legal and investigation costs upon a finding of guilt for a Tier 2 offence. However, should a defendant only be charged with a Tier 1 offence and be acquitted, not only is the conviction lost, but so too is the opportunity to recover costs and expenses accrued through the prosecutorial process. This accords with the High Court principle that an order to recover costs is to compensate the successful party, not punish the unsuccessful party. 795 Prosecutors bringing environmental offences before the LEC do not plead alternative charges — that is, charge a Tier 1 offence and a Tier 2 offence as an alternative included offence. Alternative charging is available wherever a statute (like the POEO Act ) contains a serious offence and a lesser included offence. 796 The latter is left as an alternative verdict. This is standard practice for other criminal offences, such as homicide, sexual offences, robbery, firearm and property offences. 797 The consequence of prosecutors adopting this practice in the LEC is a better utilisation of the Tier 1 provisions of the POEO Act . Nothing is lost as the almost certain conviction for the alternate Tier 2 offence remains. 790 EPA prosecution guidelines , above n 310, [3.4.3]. 791 ibid. 792 For example, in EPA v Bulga Coal Management Pty Ltd [2014] NSWLEC 5 it was held that the offence under s 148 of the POEO Act (Pollution incidents causing or threatening material harm to be notified) “is not a strict liability offence … the prosecutor must prove as a subjective fact that the defendant was aware of a pollution incident which caused or threatened material harm which it failed to notify as soon as practicable”: per Pain J at [95]. 793 Unreported. Information on this case is available at the Environmental Law Australia website at http://envlaw.com.au/epa-v- feodoroff/, accessed 16 May 2017. The EPA received only 13% of the legal and investigative costs it originally sought to claim. 794 EPA v Snowy Hydro Ltd (2008) 162 LGERA 273; [2008] NSWLEC 264 at [146] citing the appellate authority of Kirby P in R v Booth (unrep, 12/11/93, NSWCCA). L Levenson, above n 93 at p 404, argued that a conviction for a strict liability offence is virtually guaranteed, securing for the prosecutor an almost perfect “strike rate”. 795 Latoudis v Casey (1990) 170 CLR 534; Oshlack v Richmond River Council (1998) 193 CLR 72 per Gaudron and Gummow JJ at [40]. 796 See discussion in James v The Queen (2014) 253 CLR 475. 797 See “Alternative verdict” discussion in the Judicial Commission of NSW, Criminal Trial Courts Bench Book , 2nd edn, 2002-, at [2-200]ff, at http://www.judcom.nsw.gov.au/publications/benchbks/criminal/alternative_verdicts_and_ alternative_counts.html, accessed 16 May 2017.