MONOGRAPH 40 volume 1

40 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW asbestos, have the potential to cause serious harm. This includes degradation of the environment and catastrophic health risks to humans, even though no actual harm to the environment may have occurred. For example, in Kogarah City Council v Man Ho Wong , 322 Craig J noted at [22]: In the present case there is no evidence of actual harm. Nonetheless, the potential for harm for any offence against s 143 hardly calls for detailed exploration. The statutory controls directed to waste disposal are themselves a recognition of the potential for harm. So much more is that potential likely to be realised when the material in question, as in the present case, contains asbestos, notorious for its impacts or potential impacts on human health and the environment. That potential for harm must be recognised in any penalty imposed even if it be the case that the existence of asbestos in the material that the defendant placed around the streets in [a heavily populated suburban area] was not appreciated by him. Figure 1: Level of environmental harm for environmental planning and protection offences in the LEC — 2000 to 2015 (principal offence only) 322 [2013] NSWLEC 187. 323 B Preston, above n 69, p 142; Veen v The Queen (1979) 143 CLR 458 per Jacobs J at 490; Veen v The Queen (No 2) (1988) 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ at 472; R v Scott [2005] NSWCCA 152 at [15]. 324 Chief Executive, Office of Environment and Heritage v Orica Pty Ltd [2015] NSWLEC 109 per Preston CJ of the LEC at [58]. Serious Medium 17.9% Low 40.8% No harm 30.3% 11.0% 2.1.2.2 Objective seriousness The sentence imposed by the LEC for an environmental offence must reflect the objective seriousness (or gravity) of the offence and the personal or subjective circumstances of the offender. 323 As stated by Preston CJ of the LEC: The objective circumstances of the offences of relevance are: the nature of the offences; the maximum penalties for the offences; the environmental harm; the foreseeability of the risk of environmental harm; the practical measures to prevent environmental harm; the control over the causes giving rise to the offences; and whether the offences were committed with any heightened state of mind or for financial gain. 324 The court’s findings concerning objective seriousness have a significant bearing on the penalty imposed. Figure 2 details the objective seriousness of all 502 principal offences dealt with by the LEC in the study period. More than half (54.5%, n=274) the environmental offences were