MONOGRAPH 40 volume 1

27 Research monograph 40 1. Introduction 1.5 Penalties In the LEC, a fine is by far the most common penalty imposed upon an environmental offender following conviction for a Tier 1 or Tier 2 offence under the POEO Act . 239 Fines for the more common Tier 2 pollution offences in the LEC range up to $1 million for a corporation (plus $120,000 each day for a continuing offence) and up to $250,000 for an individual (plus $60,000 each day for a continuing offence). 240 Preston CJ of the LEC made the following statements in relation to the use of a monetary penalty in sentencing environmental offenders: Courts have repeatedly stated when sentencing for environmental crime that the sentence of the court needs to be of such magnitude as to change the economic calculus … It should not be cheaper to offend than to prevent the commission of the offence … Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains … The amount of the fine needs to be such as will make it worthwhile that the cost of precautions be undertaken … The amount of the fine must be substantial enough so as not to appear as a mere licence fee for illegal activity. 241 In determining an appropriate penalty for an environmental offence, the LEC (and the Supreme Court) may impose an Additional Order (or Additional Orders) together with a fine or in lieu of a fine under the: • POEO Act  242 • NPW Act  243 • Threatened Species Conservation Act 1995  244 • Mining Act 1992 245 • Water Management Act 2000 246 • Pesticides Act 1999. 247 A commonly-used Additional Order imposed by the LEC is to order the convicted environmental offender to publicise the offence, the circumstances of the offence, its environmental consequences and the court’s sentencing decisions in one or more (local) newspapers. 248 Annual reports and other notices to shareholders of a company may also be used by the court as a suitable vehicle to “name and shame” convicted offenders and to increase community awareness of unlawful conduct that adversely affects the environment. 249 239 With regard to penalties for environmental offences in the Local Court, 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, p 14, found that: Overwhelmingly, a fine was the most common penalty for the principal offence for both individuals (80.5%) and corporations (81.3%). This is not surprising given that fines are almost invariably the maximum sentence that a [local] court is entitled to impose. Particularly for the more common Tier 2 offences and their “equivalents”, a fine is the maximum penalty that the LEC is entitled to impose under the POEO Act , the EPA Act and other relevant Acts and regulations. 240 In the Local Court, the maximum monetary penalty that may be imposed for a Tier 2 offence under the POEO Act is $110,000 despite any other provisions of this Act: POEO Act , s 215(2). 241 EPA v Waste Recycling & Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 per Preston CJ of the LEC at [229]. 242 POEO Act , s 250(1)(a)–(h). 243 NPW Act , s 205(1)(a)–(f). 244 Threatened Species Conservation Act 1995, s 141N(1)(a)–(c). 245 Mining Act 1992, s 378ZE(1)(a)–(i). 246 Water Management Act 2000, s 353G(1)(a)–(c). 247 Pesticides Act 1999, s 99(1)(a)–(d). 248 For example, under s 250(1)(a) of the POEO Act . 249 POEO Act, s 250(1)(b). Emphasising the importance of shame in criminal punishment and restorative justice (J Braithwaite, Crime, Shame and Reintegration , Cambridge University Press, 1989), “naming and shaming” may also be used as a form of punishment for a range of “crimes”: from sex offenders to small businesses in breach of food safety regulations. The introduction of such measures typically accompanies a “get tough” stance to procedural justice: R Lincoln and S Otto, “To name and shame or not” (2007) 13(1) The National Legal Eagle 3 at http://epublications.bond.edu.au/cgi/viewcontent. cgi?article=1105&context=nle, accessed 16 May 2017.