MONOGRAPH 40 volume 1

Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment 1 1. Introduction An environmental crime sentencing database was established by the Judicial Commission of NSW (the Commission) in conjunction with the NSW Land and Environment Court (LEC) in 2008. 2 This study utilises the data contained within that database, and employs both qualitative and quantitative research methods to analyse sentences imposed upon environmental offenders by the LEC in the 15-year period from 1 January 2000 to 28 February 2015 (the study period). This study comprises two volumes. Volume 1 (this part) presents and discusses the main findings of this study. Volume 2 contains Cases Tables 1 , 2 and 3 that detail the LEC cases relating to pollute waters offences, waste offences and native vegetation offences, respectively. This study covers all principal offences 3 dealt with by the LEC with a particular focus on sentencing for the five most common offences (“Top 5” offences). Given the public and political interest in how the LEC punishes offenders for the unlawful removal of trees and native vegetation, this study also provides a detailed analysis of the sentences imposed by the LEC for offences committed under the Native Vegetation Act 2003 ( NV Act ) 4 and for breaches of tree preservation orders (TPOs). 5 This study utilises sentencing judgments delivered by the LEC in addition to coded information from the environmental crime sentencing database. The LEC provides detailed information and reasons for each sentencing decision. A typical decision identifies all the relevant sentencing factors under specific headings. The court addresses each sentencing factor by reference to the facts of the case. In this sense, there is a high degree of transparency in the decision-making process for serious environmental crimes in NSW. 1 The views in this Monograph are the views of the individual authors and do not represent any official views of the Judicial Commission of NSW (the Commission), nor are they necessarily shared by all members of the staff of the Commission. While all reasonable care has been taken in the preparation of this publication, no liability is assumed for any errors or omissions. The information in this Monograph is current as at 30 May 2017. 2 The environmental crime sentencing database is a record of the NSW Land and Environment Court (LEC) cases that have been coded, entered and verified. It identifies the various objective and subjective factors of each case as well as the sentencing orders made. For more information see B Preston and H Donnelly, Achieving consistency and transparency in sentencing for environmental offences , Judicial Commission of NSW, Research Monograph 32, June 2008 (also published in (2008) 32 Crim LJ 214). In particular, see the discussion under “Development of the system for environmental offences” at p 23. The then Attorney General (NSW) and Minister for Justice, the Hon J Hatzistergos, launched the environmental crime sentencing database on 30 April (2008) (see B Preston and H Donnelly, “Environmental crime sentencing database is a world first” (2008) 20(4) JOB 1, at www.judcom. nsw.gov.au/publish/job/vol20/may/article1.html, accessed 16 May 2017. 3 Where an offender commits more than one offence, the principal offence is the offence which receives the most severe sentence. Contempt offences dealt with by the LEC were not included. 4 The Native Vegetation Act 2003 ( NV Act ) is to be repealed on the commencement of s 3 of the Local Services Amendment Act 2016 which is cognate with the Biodiversity Conservation Act 2016. 5 A tree preservation order (normally abbreviated to “TPO”) is generally part of the environmental planning and protection laws of NSW local councils. For example, Sutherland Shire Tree and Bushland Preservation Order 2001 at www.sutherlandshire.nsw. gov.au/files/assets/website/documents/development/kurnell-dcp-superseded/f-m/landscape-010804_1.pdf, accessed 16 May 2017.