MONOGRAPH 40 volume 1

39 Research monograph 40 2. Findings 2.1.1 The quantitative data: the principal environmental offence In this study, environmental planning and protection offences 317 that were the principal offence 318 were examined for the purposes of the quantitative analysis. The period covered was January 2000 to February 2015. During the 15-year study period, the LEC dealt with 548 principal environmental offences. However, as 46 principal offences were “contempt” matters, these were excluded from further analysis. This left 502 principal environmental offences, of which nine cases (1.8%) involved Tier 1 offences – these matters are discussed separately. 319 Tier 2 offences (or similarly-rated offences under different Acts, current and repealed) make up the remaining 493 (98.2%) environmental offences. Tier 2 offences are ordinarily “strict liability” offences, meaning that the prosecutor only has to prove that the offender’s act or omission caused the offence — “the commission of the prohibited act is all that must be proved”. 320 Of the 493 Tier 2 offences, 437 offences (88.6%) fell into one of 10 common categories of environmental offences — these are discussed in “Top 10” environmental offences at [2.2.2]. Appendix C provides a breakdown of the full set of principal environmental offences examined in this study. 2.1.2 General offence and penalty characteristics: what a conventional sentencing analysis would show 2.1.2.1 Level of environmental harm Figure 1 provides information, for all primary offences (n=502) before the LEC in the study period, on the level of environmental harm resulting from the commission of the offence. The level of environmental harm is a finding of fact determined by the court. The finding is based on submissions from the prosecution of the actual and potential damage to the environment. The prosecuting agency’s assessment of the nature and level of environmental harm typically relies on professional assessments undertaken by environmental consultants, ecologists and other environmental experts and scientists. 321 In the study period, 11% of all environmental offences (n=55) involved a “serious” level of environmental harm and a further 17.9% (n=90) involved a “medium” level of harm. Notably, over 70% of all primary offences before the LEC in the study period involved either “low” levels of environmental harm (40.8%) or “no environmental harm” (30.3%). Nonetheless, it should be acknowledged that many environmental offences, particularly those involving the release of chemicals and other pollutants into waterways and the illegal dumping of toxic waste such as 317 For the purposes of this study, an offence involves a Class 5 matter dealt with summarily by the NSW LEC (contempt offences excluded). Environmental protection offences cover a broad range of offences under various Acts and regulations, but typically the offence involves intentional or careless conduct that causes or risks harm to the environment, such as through acts of pollution, the destruction of protected flora and fauna and Aboriginal objects, licence breaches and nuisance activities (eg noise pollution). Environmental planning offences involves conduct contrary to environmental planning legislation, typically involving building without development consent or contrary to development approval. It also includes conduct that violates heritage protections. 318 Where an offender was sentenced for multiple offences in a single finalised court appearance, only the offence that attracted the highest penalty is included in the analysis. Where the highest penalty was a fine, and the offender received multiple fines, the highest individual fine was included in the analysis. Offenders sentenced by the LEC on different occasions (ie distinct finalised court appearances) during the study period will have a separate count for each principal offence and penalty. 319 Under various current and repealed Acts, there may have been offences that may be deemed similarly “equivalent” to “Tier 1” offences. For example, an offence under s 6(1)(a) of the Environmental Offences and Penalties Act 1989 (repealed on 1 July 1999) appears to be a precursor to s 116(1)(a) of the POEO Act . Section 6(1)(a) (rep) provided: “If a person, without lawful authority, wilfully or negligently causes any substance to leak, spill … in a manner which harms or is likely to harm the environment”. For example, see EPA v CSR Ltd t/a CSR Woodpanels [2001] NSWLEC 267. All attempts have been made to identify and include “Tier 1” type offences in the analyses. 320 Environmental Defenders Office NSW, above n 286, p 95. The prosecutor need not show that the offender intended to commit the act or acted negligently. Strict liability still allows the defence of honest and reasonable mistake of fact. 321 For example, see EPA v BMG Environmental Group Pty Ltd (2012) 188 LGERA 324; [2012] NSWLEC 69 and EPA v Wattke ; EPA v Geerdink [2010] NSWLEC 24.