MONOGRAPH 40 volume 1

147 Research monograph 40 3. Discussion 3.5 The application of sentencing principles Sentencing is the last and most difficult stage of the criminal justice process. As the High Court said in Veen v The Queen (No 2) : the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. 798 The courts and the Parliament, through the common law and provisions such as s 241 of the POEO Act , have developed general sentencing principles for environmental offences which must be applied in an individual case. It is not enough to simply state the general sentencing principles without explaining how they are applied; they are applied to achieve what the High Court describes as “individualised justice”: The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion. 799 In Veen v The Queen (No 2) , Wilson J, in his Honour’s own judgment, referred to “the ease with which obscurity of meaning can infect this area of discourse”. 800 The following discussion highlights some points of contention in sentencing law with regard to the cases examined in this study. 3.6 Culpability and the De Simoni principle If the prosecution charges the offender with an offence less serious than the facts warrant, it cannot then ask the court at sentence to find facts that then render the offender liable to a more serious penalty. 801 This is known in sentencing law as the De Simoni principle. As Bell and Keane JJ put it recently in the 2016 High Court case of Nguyen v The Queen, “no one should be punished for an offence of which the person has not been convicted” . 802 Nonetheless, in assessing the objective seriousness of an offence where the difference between the offence charged and a higher offence (whether hypothetical or not) is a matter of degree, the CCA has stated that “the precise ambit of the [ De Simoni ] principle is yet to be determined”. 803 This study identified scenarios where the LEC applied or chose not to apply the De Simoni principle. There have been cases where the prosecuting agency has sought, without success, to have the LEC take into account the ingredients of a Tier 1 offence in sentencing for a Tier 2 pollution offence. 804 Such an approach is a direct breach of the De Simoni principle. For offences under s 120 of the POEO Act , it is also a breach of the De Simoni principle to take into account the fact that the offender was reckless. This is because recklessness falls somewhere between wilful and negligent conduct used for the Tier 1 offence . 805 The LEC has consistently accepted that, for the purposes of a strict liability offence under s 120 of the POEO Act, the De Simoni principle prevents it from making findings of fact that the offender acted intentionally , 806 wilfully or negligently . 807 798 (1988) 164 CLR 465 at 476. 799 Elias v The Queen (2013) 248 CLR 483 per French CJ, Hayne, Kiefel, Bell and Keane JJ at [27]. 800 (1988) 164 CLR 465 at 486. 801 The Queen v De Simoni (1981) 147 CLR 383 per Gibbs CJ at 389. 802 (2016) 256 CLR 656 per Bell and Keane JJ at [29]. 803 R v Overall (1993) 71 A Crim R 170 at 175, Mahoney JA, Allen J agreeing. 804 EPA v Snowy Hydro Ltd (2008) 162 LGERA 273; [2008] NSWLEC 264 per Biscoe J at [151]. 805 EPA v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 at [102], [142]–[150] approving EPA v Snowy Hydro Ltd, ibid. 806 EPA v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 225 A Crim R 113 at [178]. 807 Chief Executive, Office of Environment and Heritage v Orica Pty Ltd [2015] NSWLEC 109 per Preston CJ of the LEC at [110].