MONOGRAPH 40 volume 1

32 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW The environmental harm caused by the commission of an environmental offence is a fundamental consideration when determining the objective seriousness of that offence. 269 In EPA v Waste Recycling and Processing Corp , Preston CJ of the LEC recorded the principles for assessing the objective harmfulness of an environmental offence: 270 • Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account … Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 271 • Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant. 272 • Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously. 273 • The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty  274 … If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the CSP Act 1999. • The fact that the environment harmed by the offender’s conduct was already disturbed or modified is not a mitigating factor. 275 These comprehensive principles are fundamental to the concept of environmental harm, and are regularly found reaffirmed in the sentencing remarks of other LEC judges in determining an appropriate penalty for an offence — across all manner of environmental protection laws and very different types of environmental crime, including: • Pollute waters (s 120 of the POEO Act ): – EPA v Orica Aust Pty Ltd ( the Nitric Acid Air Lift Incident) — release of nitric acid into the environment, contaminating groundwater and a major waterway. 276 – EPA v Coal and Allied Operations Pty Ltd — offender failed to have in place adequate sediment and erosion control measures to prevent sediment caused by heavy rain running off into local tributary. 277 – EPA v M A Roche Group Pty Ltd; EPA v Roche — unintentional discharge of polluted water into the dry bed of an unnamed watercourse which flowed into a local creek. 278 269 Director-General, Dept of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110. 270 (2006) 18 LGERA 299; [2006] NSWLEC 419 at [145]–[149]. 271 EPA v Waste Recycling & Processing Corp (2006) 18 LGERA 299; [2006] NSWLEC 419 per Preston CJ of the LEC at [145] citing Axer Pty Ltd v EPA (1993) 113 LGERA 357 per Badgery-Parker J at 366 and Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 per Preston CJ of the LEC at [175]. 272 EPA v Waste Recycling & Processing Corp, ibid at [146] per Preston CJ of the LEC citing Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 at [174]. 273 EPA v Waste Recycling & Processing Corp, ibid at [147]. 274 EPA v Waste Recycling & Processing Corp, ibid at [148] citing Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 at [701]. 275 EPA v Waste Recycling & Processing Corp, ibid at [149] citing State Pollution Control Commission v White Wings Ltd (unrep, 1/11/91, NSWLEC) per Bignold J at 4; EPA v Ecolab Pty Ltd [2002] NSWLEC 206; (2002) 123 LGERA 269 per Cowdery J at [14]; EPA v Coggins (2003) 126 LGERA 219; [2003] NSWLEC 111 per Cowdery J at [18]; EPA v Abigroup Contractors Pty Ltd [2003] NSWLEC 342 per Lloyd J at [24]; EPA v Arenco Pty Ltd [2006] NSWLEC 244 per Pain J at [26]. 276 (2014) 206 LGERA 239; [2014] NSWLEC 103 at [125]. Pepper J found that the offences caused environmental harm at “the lower end of the spectrum”. 277 [2013] NSWLEC 134 at [103]. Biscoe J assessed the environmental harm as “low”. 278 [2013] NSWLEC 191 at [21]. Pain J found that the environmental harm and “the more serious ‘likely to cause’ harm … was for a limited time and in a limited geographical area. The extent of environmental harm is low in these circumstances”.