MONOGRAPH 40 volume 1

151 Research monograph 40 3. Discussion recognised as motives for their offending. 837 Where an offence is committed for financial advantage, this is considered an aggravating factor by the court. 838 It was possible to ascertain whether financial gain was the motive behind the offence from the findings of fact laid down by the LEC. 839 This study identified that 44% of offences committed by small business owners were assessed by the court as being committed for the purpose of obtaining a financial advantage. The corresponding percentage for “special liability” offenders was 36%. For “ordinary Joe” individuals, the percentage was only 19% — the same as for corporations. Without a breakdown of the sub-classes of “individual” offender, the statistic would be raw and undifferentiated: approximately 34% of offences committed by “individuals” being committed for financial gain. Examining whether the offending conduct occurred in the course of a business activity also allows a more meaningful explanation of offending patterns and the differences in fine amounts and other components of the sentence. For example, corporations were more prominent in terms of pollute waters and contravene licence offences. Small business owners were more involved in the commission of waste offences and development without consent offences. “Ordinary Joe” individuals tended to be involved in breaches of environmental planning laws. Directors prosecuted under special liability provisions were found to be most prominent in waste offences committed by corporations under their directorship or management. As Tables 14a and 14b reveal there are substantial differences in the quantum of fines and costs for these various offence categories. For example, “special liability” offenders and small business owners were prominent in the commission of waste offences which, more often than not, were financially motivated. Consequently, waste offenders received some of the highest costs orders as well as some of the highest fines. So too did rural landowners for native vegetation offences, where committed to realise a financial advantage. The EPA prosecution guidelines state that “those who direct a corporation’s illegal activities will not be shielded from responsibility by the corporate legal structure”. 840 Directors and managers of corporations involved in environmental offending may attempt to hide behind the corporate identity or blame sub-ordinates, workers or contractors. 841 Others claim that they have already been punished as a consequence of being subject to extra curial punishment, such as lost earnings resulting from the offence or bad publicity arising from the commission of the offence. The extra curial punishment may even be claimed to have caused the company to “wind down” and the company director to become bankrupt, as was the case in Director General, Dept of Environment and Climate Change v Mura 842 and as the defence counsel submitted in EPA v Wattke. 843 In the latter case, Pain J held, in imposing fines totalling $60,000 on both the company director and the company’s manager, that: 837 Bricknell, above n 686, at p 3. 838 It is an aggravating factor under s 21A(2)(o) of the CSP Act . 839 Similarly, Bricknell, above n 686 at pp 3, 44 reported that: A primary incentive for committing environmental crimes is personal gain. These gains are obtained directly through benefits achieved from performing a specified act but also through the resources saved by ignoring standardised codes as to how certain practices should be performed. Personal gain may be distributed between distinct players and in some cases, follows a gradient of financial benefit dependent on role and circumstances. One notorious example is the involvement of the so-called ecomafia in relieving companies and municipalities of industrial and other waste. The companies benefit as they do not have to pay increased costs in depositing waste at designated sites and the waste collectors benefit by exacting a fee for their services. … [Another example involved a] demolition company prosecuted in Victoria for dumping and burning demolition waste on a rural property [in order] to avoid $10,000 in tipping fees. 840 EPA prosecution guidelines , above n 310. 841 In Penrith City Council v 24/7 Waste Bins Pty Ltd [2002] NSWLEC 186, the defendant was the director and secretary of a waste skip business who did not have approval to use land for the stockpiling and sorting of waste. In the summons, the defendant was charged with an offence that he aided, abetted, counselled or procured the commission of an offence by the company contrary to ss 76A(1) and 125(1) of the EPA Act . Seeking leniency in sentence, legal counsel for the defendant, submitted that their client had “not sought to hide behind the corporate identity”: at [20]. In Gosford City Council v Build Max Developments Pty Ltd [2000] NSWLEC 224, the defendant was charged with the same offence “by virtue of his directorship of the Defendant Company” under the liability provisions of s 169 of the POEO Act . Bignold J at [24] commended the individual defendant for “taking the ultimate responsibility for the proper management of his building development projects and not seeking to hide behind his management team or his project or site team”. 842 [2009] NSWLEC 233. 843 [2010] NSWLEC 24.