MONOGRAPH 40 volume 1

44 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW Corporation Individual Overall Offenders fined (n) 249 168 417    (%)* 84.4% 81.2% 83.1% Mean $43,683 $29,823 $38,099 Median $25,000 $15,000 $22,000 Middle 50% range $15,000–$50,000 $7,500–$35,000 $10,000–$40,000 Lowest $500 a $200 $200 a Highest $1,200,000 $510,000 $1,200,000 Most common equal $20,000 equal $25,000 equal $30,000 equal $5,000 equal $20,000 $20,000 Next most common $15,000 $30,000 $30,000 Sum $10,887,018 $5,010,240 $15,887,258 * Fines (including fines plus Additional Orders) as a percentage of all penalties for that class of offender. a The lowest recorded fine amount was $10. In this case ( EPA v Australian Pacific Oil Company Pty Ltd [2003] NSWLEC 279), two company directors were found liable under the “special executive liability” provisions of s 169 and each received a fine of $20,000 for the offence against s 143(1)(b) of the POEO Act . At the same time, the court decided to impose a nominal fine of $10 on the company for the same offence. Table 1: Fines imposed for environmental planning and protection offences in the LEC: Corporations and Individuals — 2000 to 2015 (principal offence only) As previously indicated, from January 2000 to February 2015, the highest fine for a corporation was $1.2 million, for an individual it was $510,000. 339 The LEC ordered environmental offenders to pay just under $16 million in fines in the study period: with almost $11 million of the total to be paid by corporations, and around $5 million to be paid by individuals. 339 In Filipowski v Fratelli D’Amato S.r.l (2000) 108 LGERA 88; [2000] NSWLEC 50, a penalty of $510,000 was imposed on the overseas owner of an Italian tanker involved in the discharge of oil into the waters of Sydney Harbour. Outside of pollution offences, in Cowra Shire Council v Fuller [2015] NSWLEC 13, the defendant, a rural property owner, was fined $175,000 for carrying out development without development consent, that being the deliberate and planned unlawful demolition of a building with potential for local heritage significance. In committing the offence, Pain J found at [23] that the defendant: was well aware of his legal obligation to make a development application (DA) for demolition and chose not to abide by that requirement in the EPA Act. There was nothing inadvertent or accidental about his actions which gave rise to the offence in the circumstances of planning the demolition. 340 B Preston, above n 69, p 160 citing Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492 per Barker and Williams JJ at 505. Also see earlier section, Costs as a sentencing factor at [1.3]. 341 EPA v Barnes [2006] NSWCCA 246 at [78] and [88]; EPA v Queanbeyan City Council (No 3) (2012) 192 LGERA 415; [2012] NSWLEC 220 at [248] and Director-General of the Dept of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [68]. 342 See Appendix D for a list of 56 NSWLEC cases which specifically apply the sentencing principles relating to costs as expounded in Barnes at [78] and [88]. 2.2 A more refined analysis of offences and offenders dealt with by the LEC Up to this point in the examination of monetary penalties, consistent with a conventional approach to sentencing statistics, the analysis has not taken into consideration whether the fine amount was reduced or moderated because of associated prosecution costs, investigation costs, restorative orders or other financial considerations (such as lost earnings, compensation to affected parties, etc). However, as B Preston noted “the amount of these cost orders will be relevant in determining the level of any term of imprisonment or the level of any fine”. 340 The approach that is now adopted and progressed in this study acknowledges that the order for costs is an “aspect of punishment” factored into the determination of the appropriate penalty. Such costs act to reduce the quantum of the fine or other pecuniary penalty. 341 These principles, as expounded in Barnes , are firmly entrenched in the LEC’s sentencing considerations. 342