MONOGRAPH 40 volume 1

48 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW Table 2: Tier 1 offences under the POEO Act a in the LEC — 2000 to 2015 (principal offence only) Offence Citation Offender type Fine Additional penalty/ order Prosecutor’s costs Environmental offence and damage s115: Wilfully or negligently dispose of waste 1a EPA v BMG Environmental Group Pty Ltd & Barnes [2012] NSWLEC 69 Corporation $100,000 None $87,500 POEO Act , s 115(1). Negligently disposed of over a million litres of untreated septic tank waste and untreated grease trap waste on Greenbank farm: [1], [10]. BMG obtained considerable financial gain by disposing of waste at Greenbank rather than paying fees at licensed facilities readily available to BMG. Such savings gave BMG a competitive advantage in being able to undercut competitors who did not engage in such conduct: [73], [74], [107]. The financial benefit BMG could have obtained was assessed at approximately $227,000: [74]. 1b EPA v BMG Environmental Group Pty Ltd & Barnes [2012] NSWLEC 69 (Individual) s 169 Special executive liability (Director) $100,000 None $87,500 2 EPA v Pal (No 2) [2009] NSWLEC 60 (Individual) (Also see EPA v Pal [2009] NSWLEC 35) [source of citations] s 169 Special executive liability (Principal and co-director) $45,000 CSO: 450hrs As assessed or agreed POEO Act , s 115(1) (2 counts). Negligently disposed of a total of 62,000 cubic metres of “inert (building) waste” [on large urban/rural residential property and a chicken farm]: [2], [8], [10]. The defendant had a commercial purpose and made commercial gains: [107] A conservative figure advanced by the prosecution as to the cost of disposing of this material at a waste collection facility, rather than through the defendant, would be around $1.7M: [106]. 3 EPA v S J Perry [2004] NSWLEC 715 (Individual) s 169 Special executive liability (Director) $30,000 $65,000 POEO Act , s 115(1). Negligently disposed of 3,000 tonnes of used tyres (unlawfully abandoned on rural property): [2(c) and (d)]. Adverse business vicissitudes; failed business venture [financially motivated]: [29]. 4a EPA v Wattke ; EPA v Geerdink [2010] NSWLEC 24 (Individual 1) s 169 Special executive liability (Director) $50,000 CSO: 460hrs As assessed or agreed POEO Act , s 115(1). Negligently disposed of 750,000 litres of untreated grease trap waste on a rural property: [1], [12(62)]. Offence committed for the purpose of obtaining financial benefit in the company’s operations of the collection and disposal of waste: [50]. 4b EPA v Wattke ; EPA v Geerdink [2010] NSWLEC 24 (Individual 2) s 169 Special executive liability (Manager — company operations) $50,000 CSO: 460hrs As assessed or agreed s116: Wilfully or negligently cause leak, spill (etc) 5a EPA v Warringah Golf Club Ltd (No 2) [2003] NSWLEC 222 Corporation (Golf club) $250,000 ss 246 and 248: $50,500 re councils’ clean-up costs: [24] plus 2 Additional Orders: [58] $190,000 POEO Act , s 116(2). Negligently caused substance to escape in a manner that harmed or was likely to harm the environment. Poisonous substance hosed off, entered storm water drain and then local creek and lagoon. Approximately 10,000 fish, numerous ducks and other wildlife killed: [2003] NSW LEC 222 at [4]–[5]. No financial motive: offenders did not profit from the offence: [16]. 5b EPA v Coggins [2003] NSWLEC 111 Individual (Employee — golf course superintendent) $0 CSO: 250hrs plus $1,236 disbursements: [52] As assessed 6 a EPA v CSR Ltd trading as CSR Woodpanels [2001] NSWLEC 267 Corporation $240,000 None $100,000 EOP Act , s 6(1)(a) (rep): Negligently caused substance to escape in a manner that harmed or was likely to harm the environment. Leaking of effluent into the groundwater resulting in contamination of spring water, harm to aquatic invertebrates, die back of riparian vegetation, and loss of habitat and grazing land: [12]. [No financial motive reported.] a Includes one offence under the Environmental Offences and Penalties Act 1989 (rep), ( EOP Act ), which the POEO Act replaced. See Case No 6 ( EPA v CSR Ltd trading as CSR Woodpanels [2001] NSWLEC 267) in the Table above. Note: Case No 5b is colour-coded as it represents the only individual (as opposed to company director, etc) prosecuted for a Tier 1 pollution offence.