MONOGRAPH 40 volume 1

149 Research monograph 40 3. Discussion 3.7 Jurisdictional ceiling of the Local Court The statutory maximum monetary penalty that the Local Court can impose for an environmental offence increased 500% from $22,000 to $110,000 early in 2012. The increase was criticised as being too large with the potential to “remove the bulk of cases from the specialised jurisdiction of the LEC”. 820 Two years later, the CCA handed down its decision in Harris v Harrison. 821 While there were many grounds for this appeal, the applicant did include an appeal that the total penalty was manifestly excessive. 822 The CCA found, for a diverse number of reasons, 823 that “this was an offence that should have been treated as one suitable to be prosecuted in the Local Court, with its limitation on penalty [which, at the time, was capped at $22,000]”. 824 This study identified that, during the 15-year study period, over 60% of principal environmental offences received a fine which was less than the Local Court jurisdictional limit at the time. This finding suggest that, historically, as many as six in every 10 offences dealt with by the LEC could have been prosecuted in the Local Court, where lower maximum penalties and reduced cost orders generally apply. Furthermore, “low” objective gravity was identified in Harris v Harrison as a factor that makes an offence potentially suitable for prosecution in the Local Court, and to the lower maximum penalty available in that jurisdiction. 825 The subset of offences assessed as being of low objective seriousness — some 40% of all offences dealt with by the LEC in the study period — were potentially suitable for disposal in the Local Court, rather than in the LEC, consistent with the appellate court’s decision in Harris v Harrison . Post- Harris , and consistent with the current offence and penalty statutory regimes, the proportion of environmental offences that attracted a fine in the LEC less than the Local Court’s jurisdictional limit of $110,000 was almost 87%. 826 On face value, this would seem to suggest that a substantial number of post- Harris LEC sentencing decisions could be subject to similar grounds of appeal as upheld by the CCA. Over 46% of environmental offences in the post- Harris period which received fines of less than $110,000 were assessed by the LEC as being of “low” objective seriousness. 827 3.8 Penalties The LEC appears to prefer the imposition of monetary penalties even where alternative sanctions are available. A fine was the most common penalty imposed by the LEC for the principal environmental offence: almost 64% of principal offences received a fine. A significant share of environmental offences also attracted a fine plus an Additional Order(s) under s 250 of the POEO Act . Other penalties were rarely imposed: a community service order (s 8 of the CSP Act ) was imposed on just seven offenders. Suspended sentences (s 12), intensive correction orders (s 7) and full-time imprisonment (ss 5, 44–46) — despite their availability as potential penalties for some offences — were not used at all by the LEC during the period examined. 820 H Donnelly, Z Baghizadeh and P Poletti, “Environmental planning and protection offences prosecuted in the NSW Local Court”, Sentencing Trends & Issues , No 43, Judicial Commission of NSW, 2014, p 3. 821 (2014) 86 NSWLR 422. 822 ibid at [5]. The total penalty included a fine of $28,000, an order to pay the prosecutor’s costs recognised as “not insignificant” [66] and in the order of $75,000 [100], and a newspaper advertisement taken out at the offender’s expense making public the circumstances and outcome of the offence. 823 The reasons are articulated at [69]–[96] and concern the sentencing judge’s errors in assessing the objective seriousness of the offence, including the original findings of circumstances of aggravation (ie intent) and a financial motive behind the commission of the offence. The conclusions were identified by the CCA as significant to the assessment of objective seriousness [80]–[90] but ultimately unsustainable. 824 Harris v Harrison (2014) 86 NSWLR 422 at [96]–[97]. 825 ibid. 826 Not included in the calculations are offences dealt with by the LEC that were: (i) Tier 1 offences that could not be prosecuted in the Local Court, and (ii) offences where an Additional Order was made by the LEC under s 250(1) of the POEO Act that could not be ordered by a Local Court . 827 The fine amounts imposed by the LEC ranged from $22,500 to $82,500 (mean: $48,028; median: $38,375).