MONOGRAPH 40 volume 1

152 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW A penalty imposed by the Court for an offence under the POEO Act is not a debt provable in bankruptcy, Bankruptcy Act 1966 (Cth) s 82(3). This means that a defendant will continue to be liable to pay if the bankruptcy is discharged ( EPA v Ableway Waste Management Pty Ltd [2005] NSWLEC 469 at [35]). In EPA v Hogan [2008] NSWLEC 125, the financial position of the defendant, an undischarged bankrupt with an ongoing earning capacity, was given some but not significant weight. In EPA v Douglass (No 2) [2002] NSWLEC 94, also involving an impecunious offender, Lloyd J took into account the seriousness of the offence and the need for general deterrence in awarding costs for over $1 million in mitigation of the environmental harm despite the defendant being bankrupt. I considered these cases in determining in EPA v Buchanan (No 2) to impose a substantial fine. 844 Her Honour considered “a community service order close to the maximum of 460 hours should also be imposed” on both company position holders together with the substantial fines because of the level of environmental harm resulting from the Tier 1 land pollution offence. Finally, the LEC also has been required to grapple with the distribution of culpability where the prosecution has charged the corporation and company position holder(s) with the same offence. More complex deliberations and outcomes are framed by the court when a company and company directors/managers are jointly charged and convicted of the offence(s). 845 The Federal Court’s approach to the imposition of civil penalties for corporations and their directors has provided the LEC with some guidance. 846 Where the company and the individual (company director) are one and the same offender, otherwise referred to as “a one person company” or the corporation’s “alter ego”, the principle of totality requires the court to make a downward adjustment to the individual sentence to avoid double punishment. 847 The LEC may also resolve the issue by imposing a substantial fine on a company director and a nominal fine on the company. 848 3.10 Resolving costs as a sentencing factor Prosecutor costs were not an issue in the early days of sentencing for environmental offences. For example, in Majury v Sunbeam Corp Ltd, 849 following a successful prosecution for an offence under s 16 of the CW Act (rep), the court imposed a fine of $3,000 and assessed the prosecutor’s costs to be $600. 850 This was for a two-day hearing which involved junior counsel for the prosecution calling witnesses. 851 This can be contrasted with the recent case of Leichhardt Council v Geitonia Pty Ltd (No 7) , 852 a three-week trial, with the prosecutor represented by senior and junior counsel, and an estimate of costs “in the vicinity of $500,000”. 853 844 ibid at [93]–[94]. The company director and company manager were charged with a Tier 1 waste offence committed negligently and an associated Tier 2 pollute waters offence. See Table 2 . 845 Examples include: the pollute waters case of Fairfield City Council v TT Rubbish Removal Pty Ltd [2008] NSWLEC 201 and the related appeal case of Ngo v Fairfield City Council [2009] NSWCCA 241; and the waste offence cases of: EPA v Aargus Pty Ltd [2013] NSWLEC 19; EPA v Geoff Robinson Pty Ltd [2011] NSWLEC 14; and The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd (No 2) [2012] NSWLEC 95. 846 The Federal Court cases include ACCC v ABB Transmission & Distribution Ltd (No 2) (2002) 190 ALR 169 per Finkelstein J at [45]. See EPA v Alcobell Pty Ltd ; EPA v Campbell [2015] NSWLEC 123 per Pain J at [120]. See also Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79. 847 Keir v Sutherland Shire Council [2004] NSWLEC 754 per McClellan (then) CJ of the LEC at [22]; The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd (No 2) [2012] NSWLEC 95 per Biscoe J at [39], [42]; Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 per Biscoe J at [52]–[63]. See n 234 at [1.4]. 848 For example, in EPA v Australian Pacific Oil Co Pty Ltd [2003] NSWLEC 279, two company directors were found liable under the “special executive liability” provisions of s 169 and each received a fine of $20,000 for the offence against s 143(1)(b) of the POEO Act . The LEC imposed a nominal fine of $10 on the company for the same offence. 849 [1974] 1 NSWLR 659. 850 ibid at 665. McClemens CJ at CL was required to make an assessment of what costs would be “just and reasonable” under s 14 of the Supreme Court (Summary Jurisdiction) Act 1967. 851 ibid at 665. 852 [2015] NSWLEC 79. 853 ibid at [64].