MONOGRAPH 40 volume 1

29 Research monograph 40 1. Introduction This last point is perplexing and worthy of further discussion. A possible aggravating feature of a Tier 1 EPA Act offence is where the offender’s conduct may have caused the death, serious injury or illness of a person. Tier 1 pollution offences do not specify this as an aggravating factor, but the sentence for such offences can include a term of imprisonment. Sentences for Tier 1 EPA Act offences cannot include a custodial component, even though their objective seriousness may be assessed as considerably higher because of the possibility of serious or deadly harm inflicted on another person as a result of the offender’s conduct. 257 The Supreme Court should be conferred jurisdiction to deal with the more serious Tier 1 EPA Act offences. This appears to be a legislative oversight considering that court’s jurisdiction to deal with Tier 1 pollution offences. While s 242 of the POEO Act provides for penalties for continuing offences, this does not apply to Tier 1 pollution offences (s 119) as the maximum monetary penalties for those offences do not carry an additional daily maximum monetary penalty for ongoing damage to the environment. By contrast, the maximum penalties for the Tier 2 “equivalents” of Tier 1 pollution offences do incorporate an additional fine amount for continuing offences (ss 123, 132 and 142A). In this regard, Tier 1 offences against the EPA Act share a common feature with Tier 2 offences under the POEO Act — a feature which is absent for Tier 1 pollution offences under the POEO Act . Where the offender is a corporation, the LEC is able to impose a fine of up to $5 million for a Tier 1 EPA Act offence, up to $2 million for a Tier 2 EPA Act offence, and up to $1 million for a Tier 1 EPA Act offence. For a continuing offence, the LEC may also impose a cumulative daily fine of $50,000, $20,000 and $10,000 respectively for Tier 1, 2 and 3 offences. No upper limit, constraining the size of the total fine payable by a corporation, is set out in the EPA Act . Where the offender is an individual, the LEC can impose a fine of up to $5 million for a Tier 1 EPA Act offence, up to $2 million for a Tier 2 EPA Act offence, and up to $1 million for a Tier 1 EPA Act offence. For a continuing offence, the LEC may also impose on the individual a cumulative daily fine of $10,000, $5,000 and $2,500 respectively for Tier 1, 2 and 3 offences. Again, there is no “ceiling” in the legislation placed on the total fine amount payable by an individual convicted of a Tier 2 EPA Act offence. 258 In both summary jurisdictions, Tier 3 EPA Act offences can be dealt with by the court, not just by way of penalty notice. Section 125C(1)(a) of the EPA Act defines a Tier 3 offence as a “certificate- related offence”, 259 which is an offence under s 125 arising under certain designated building, compliance and certification provisions of that Act. 260 If proceedings in respect of a Tier 3 EPA Act offence are brought in the Local Court, the maximum monetary penalty is again limited to $110,000 or the maximum monetary penalty provided by that Act in respect of the offence, whichever is the lesser. In general, Sch 5 of the Environmental Planning and Assessment Regulation 2000 caps the fine amount by penalty notice at $15,000 for corporations and $7,500 for individuals. 261 257 In putting into perspective Tier 1 EPA Act offences, where an aggravating factor was the death of another person, it may be noted that offences involving homicide usually carry a maximum penalty of imprisonment under the under the Crimes Act 1900: at the “low” end, a maximum penalty of 10 years’ imprisonment for the offence of “Dangerous driving occasioning death” (s 52A(1)), and at the “high” end, life imprisonment for murder (s 19A) and 25 years for manslaughter (s 24). A person convicted of “Assault causing death” (s 25A(1)) is liable to imprisonment for a maximum of 20 years. 258 For any offence against the EPA Act , the Local Court is restricted in the size of the maximum monetary penalty it may impose. The jurisdictional limit for a fine issued in the Local Court, in any instance, is capped at $110,000: EPA Act , s 127(3). The Act specifies the maximum monetary penalty for each particular offence and, for a very large number of offences, the maximum amount is far less than $110,000. 259 Or any other offence against this Act under s 125(1) for which a Tier 3 maximum penalty is declared by the EPA Act to apply: s 125C(1)(b). 260 In shortened form, the Tier 3 “certificate-related” offences under the EPA Act are against: s 81A(2) — Commencing erection of building without giving notice required by development consent; s 81A(4) — Commencing subdivision work without giving notice required by development consent; s 85A(10A) — Supplying complying development certificate without payment of long service levy; s 85A(11) — Failure to give proper notice of outcome of application for complying development certificate; s 86(1) — Commencing erection of building without giving notice required by complying development certificate; s 86(2) — Commencing subdivision work without giving notice required by complying development certificate; s 109D — Issuing a Pt 4A certificate without being a proper certifying authority; s 109E(3)(d) — Failure of principal certifying authority to ensure inspections carried out before issuing occupation or subdivision certificate; s 109E(3)(e) — Failure of principal certifying authority to ensure preconditions met before issuing occupation or subdivision certificate; s 109F — Failure to comply with restrictions on issuing construction certificate; s 109G — Failure to comply with restrictions on issuing compliance certificate; s 109H — Failure to comply with restrictions on issuing occupation certificate; and, s 109J — Failure to comply with restrictions on issuing subdivision certificate. 261 According to the EPA Connect Newsletter at www.epa.nsw.gov.au/epaconnect/Issue2Sept2014.htm , accessed 16 May 2017, the increased penalty amounts, which came into effect on 31 July 2015, made them “the highest penalty notice fines in Australia”. In some cases, there was “a ten-fold increase in fines for the most serious environmental offences”. These increased penalty notice amounts were introduced to “better reflect community expectations and provide a deterrent to reoffending”.