MONOGRAPH 40 volume 1

148 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW The De Simoni principle also has been applied to waste offences under the POEO Act . For a Tier 2, s 143(1) offence of unlawfully transporting or depositing waste the court cannot sentence on the basis of wilfully or negligently disposing of waste in a manner that harms or is likely to harm the environment. This is because there is a more serious offence in s 115(1) of the POEO Act with those ingredients. 808 There is a decision which took a contrary approach, but no adverse factual finding was made. 809 This study also identified scenarios where the LEC did not apply the De Simoni principle on the basis of CCA authority. The CCA has held that, in sentencing for a strict liability offence, a court is entitled to take into consideration the additional ingredients of negligence, recklessness, knowledge and intent in determining the offender’s culpability where there is no “higher” offence in the statute. 810 The approach was first taken in the 1974 case of Majury v Sunbeam Corp Ltd 811 and later applied by Kirby J in Camilleri’s Stock Feeds Pty Ltd v EPA . 812 It is argued by the authors that such an inquiry is an unnecessary distraction in sentencing for strict liability offences. Furthermore, it may be asserted that the “search” for further fault ingredients (ie intention, recklessness or negligence) ultimately results in an inconsistent approach to the issue of culpability for strict liability offences both within and across environmental statutes. 813 The sentencing factors set out in s 241 of the POEO Act are sufficient for the purposes of determining culpability specifically for environmental protection offences without the need to establish additional fault ingredients. 814 The High Court has not addressed the issue directly. It has held, however, that taking into account an aggravating circumstance that is hypothesised and does not exist, whilst not a breach of the De Simoni principle, is irrelevant to the assessment of the seriousness of the offence 815 and “likely to distort the assessment of objective gravity”. 816 Similarly, the High Court has made it clear that there is no common law principle requiring a sentencing court to have regard to a less punitive offence that could have encompassed offending conduct, 817 that is, the reverse of the De Simoni principle. Requiring a court to sentence by reference to an offence of which the offender has not been convicted, but which it considers the prosecution should have charged, risks compromising the court’s impartiality and independence. 818 In short, just as it is erroneous for a court to take into account as a matter in mitigation the fact that the offenders conduct could have been accommodated by a less serious charge, 819 so it may be for a court to add fault ingredients to strict liability offences. It is for the Parliament to frame criminal liability and for the prosecution to choose the appropriate charge. 808 The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd (No 2) [2012] NSWLEC 95 at [36]. 809 EPA v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158 at [75]. Robson J, nevertheless, found at [77] that the waste offences were committed unintentionally. 810 EPA v Lithgow City Council [2007] NSWLEC 695 per Preston CJ of the LEC at [35] : “A strict liability offence that is committed intentionally or negligently will be objectively more serious than one that is committed unintentionally or non- negligently”. 811 [1974] 1 NSWLR 659 per McClemens CJ at CL at 664. 812 (1993) 32 NSWLR 683. 813 See examples cited at [1.2.1] and [1.2.2] of the Introduction . 814 POEO Act , s 241. Also, see general discussion of the issues at [1.2.1] to [1.2.3] of the Introduction . 815 Nguyen v The Queen (2016) 256 CLR 656 at [60] per Gageler, Nettle and Gordon JJ. Bell and Keane JJ at [29] stated: “a judge sentencing an offender for [a lower offence within a statutory hierarchy] would err if the judge assessed the seriousness of the offence by taking into account that the offender had not committed [the ingredient for a higher offence] … The judge would err because, plainly enough, that fact is irrelevant to the assessment of the seriousness”. 816 ibid. Gageler, Nettle and Gordon JJ at [58]. Their Honours held that it was an error at law “because it is likely to result in an assessment of the relative gravity of the subject offence which ill-accords with its objective gravity relative to other instances of offences of that kind”. 817 Elias v The Queen (2013) 248 CLR 483 at [5], [25]. 818 ibid at [35]. 819 ibid.