MONOGRAPH 40 volume 1

150 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 perceived criminal status of Tier 2 environmental offences, which represent the bulk of the LEC’s work, has been questioned in the past. They have been labelled variously as “regulatory”, “public welfare”, “quasi-criminal”, “white collar crimes” and “trivial”. Many of the offenders too — not uncommonly factory managers, small business owners and government agencies — do not neatly fit the “criminal” stereotype. 828 The sanctions applied to environmental crimes appear to resonant penalties more characteristic of civil penalties under corporations laws. 829 Over recent times, the increasing use of Additional Orders with an expensive restorative component together with larger fines and substantial orders for costs would seem to reflect that environmental offences are deemed serious and are being treated seriously by the LEC. 3.9 Factoring the type of individual offender into the analysis of sentencing Parliament provides for different maximum penalties depending upon whether the environmental offender is charged as a corporation or an individual. While the maximum penalty for corporations is generally higher, individuals may be subject to harsh penalties which impact on their personal liberty such as imprisonment, home detention, intensive correction orders, suspended sentences and community service orders. 830 In many cases, the prosecutor may elect to charge the offender as a corporation or as an individual. This study examined the framing of liability by the prosecution. Position holders of companies charged under “special liability” provisions 831 and small business owners are prosecuted as “individuals.” 832 The separation of “special liability” offenders is particularly important given that these designated individuals — described as “the directing mind and will of the corporation”, 833 — are dealt with by the LEC under the same provisions as corporations, 834 except that the maximum penalty for individuals not corporations apply. “Special liability” offenders can be proceeded against and convicted regardless of whether or not the corporation has been proceeded against or has been convicted. 835 Notwithstanding the above, it is a defence that the corporation position holder “used all due diligence to prevent the contravention by the corporation”. 836 Offenders prosecuted under “special liability” provisions and small business owners prosecuted as individuals (not corporations), often commit their offence(s) in a commercial setting. They are often the direct beneficiaries of profits made by their companies through illegal as well as legitimate business activities. Profit-making and the financial benefits of cost-cutting are 828 R v Curtis (No 3) [2016] NSWSC 866 at [51]. 829 For example, s 1317E of the Corporations Act 2001 (Cth) and Pt VI of the Competition and Consumer Act 2010 (Cth). 830 CSP Act , Pt 2, Div 2 and 3. The study found that these custodial alternatives and alternatives to custody are rarely imposed by the LEC: see general discussion at [2.1.2]. 831 For example, under s 169 of the POEO Act . There are similar provisions under other NSW environmental protection legislation (eg s 175B(1) of the National Parks and Wildlife Act 1974). Similarly, the Marine Pollution Act 1987 (repealed) imposed liability for criminal acts and omissions on: ship masters and ship owners (ss 8(1) and 18(1)); the crews of ships (s 8A(1)); and, ship crew involved in marine pollution incidents (s 18A(1)). 832 Bankstown City Council v Hanna [2014] NSWLEC 152 is a notable example where the individual, a serial waste dumper, operated a small demolition, excavation and tipper hire business. 833 EPA prosecution guidelines , above n 310, [3.4.2]. Pain J in EPA v Alcobell Pty Ltd, EPA v Campbell [2015] NSWLEC 123 at [120]–[121] referred to the co-defendant, the sole director and shareholder in the company, as it’s “the guiding mind”. 834 Authority exists for the proposition that a defendant company charged with a pollution offence can be found liable for that offence based on vicarious liability for the conduct of its employees: Tiger Nominees Pty Ltd v State Pollution Control Comm (1992) 25 NSWLR 715. The issue of vicarious liability was also considered by the CCA at [84] in Director-General of the Dept of Land and Water Conservation v Greentree (2003) 140 A Crim R 25, where it was determined at [108] that there where “common elements in the counts against [the applicant] personally and those against him as a director”. 835 POEO Act , s 169(1)–(2). 836 For example, see s 169(1)(c) of the POEO Act . G Bates, above n 262, [9.16], described the notion of “due diligence” as “taking sufficient precautions to avoid environmental harm such that a court could conclude that the defendant was not at fault”, but goes on to say that while “[t]he concept is well understood in areas such as corporations and trade practices law … there is still considerable uncertainty over what may be involved in environmental due diligence”. [Citations omitted.]