MONOGRAPH 40 volume 1

ii Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW 2.3 The nature of environmental offending 71 2.3.1 Environmental protection offences 71 2.3.1.1 Objective factors 71 2.3.1.2 Subjective factors 76 2.3.2 Environmental planning offences 81 2.3.2.1 Objective factors 83 2.3.2.2 Subjective factors 89 2.4 “Top 5” offences in the LEC 91 2.4.1 Pollute waters 92 2.4.2 Carry out development without consent/not in accordance with consent 101 2.4.3 Contravene any condition of licence 105 2.4.4 Unlawfully transport and/or dispose waste 107 2.4.5 Offend against direction or prohibition 115 2.4.6 Destruction of trees and tree preservation orders 117 2.4.7 An overview of costs for environmental planning offences 120 2.4.8 Native vegetation offences 121 2.5 Summary of findings on value of monetary punishments 136 3 Discussion 139 3.1 A necessary departure from a conventional sentencing analysis 139 3.2 Key findings on costs 142 3.3 Criminal liability 143 3.4 Charging practices 144 3.5 The application of sentencing principles 147 3.6 Culpability and the De Simoni principle 147 3.7 Jurisdictional ceiling of the Local Court 149 3.8 Penalties 149 3.9 Factoring the type of individual offender into the analysis of sentencing 150 3.10 Resolving costs as a sentencing factor 152 Appendices 154 Appendix A: Land and Environment Court Act 1979 (current as at 16 February 2017) 154 Appendix B: Jurisdiction of the LEC — jurisdictional overlap with Supreme and Local Courts — Part 1: POEO Act and Part 2: EPA Act 155 Appendix C: Most common environmental planning and protection offences in the NSW Land and Environment Court, 2000 to 2015 (principal offences only) 157 Appendix D: LEC cases applying the “costs” principles in EPA v Barnes 160 Selected bibliography 162