MONOGRAPH 40 volume 1

49 Research monograph 40 2. Findings Comparing the penalties for the “individuals” convicted of Tier 1 offences, only those subject to “special executive liability” received a fine in combination with a CSO. The fines imposed on the “directors” of companies responsible for serious environmental offences ranged from $30,000 to $100,000. In addition, the hours of community service work ordered to be performed by the culpable “directors” (ie 450; 460, 460 hours, respectively) were manifestly higher than the hours ordered to be performed by the “individual”, the golf club’s employee (ie 250 hours). It should also be noted that the LEC penalised the Warringah Golf Club with a $250,000 fine — a monetary penalty much higher than that imposed for a Tier 1 offence on the other corporation (ie $100,000) or, for that matter, imposed on any company “alter ego” for a Tier 1 offence. EPA v Gardner, three years prior to the earliest LEC case recorded on the Commission’s Judicial Information Research System (JIRS), 361 involved the wilful disposal of waste in a manner which was likely to harm the environment, contrary to s 5(1) of the repealed EOP Act (see Case study 1 ). This offence was the precursor and equivalent to the Tier 1, s 115 offence, under the POEO Act . The offence attracted a maximum penalty of $250,000 or seven years’ imprisonment or both, although the maximum penalty that could be imposed at the time by the LEC (which dealt with the case) was a penalty of $250,000 or two years’ imprisonment or both. This is the only known case dealt with by the LEC where an environmental offender received a prison term upon conviction and sentencing. 362 2.2.2 “Top 10” environmental offences Table 3 shows the 10 most common environmental offences in the LEC. These offences comprised 88.0% (442 cases) of environmental offences dealt with by the LEC in the period from 2000 to 2015. The “Top 10” offence categories include both environmental protection offences and environmental planning offences. The majority of environmental protection and environmental planning offences before the LEC were prosecuted under the POEO Act (50.9%) or the EPA Act (29.5%). Notably, the POEO Act deals largely with environmental pollution offences, whereas the EPA Act deals predominantly with environmental planning offences. Based on this distinction, these fundamentally different types of environmental offences are treated separately in this study, following a more general discussion of the most common offences dealt with by the LEC. Pollute waters offences (primarily s 120 of the POEO Act ) 363 was the most common environmental offence over the 15-year period examined. There were 118 cases (23.5%) where pollute waters represented the principal offence. Carrying out development without (or not in accordance with) a development consent (s 76A(1)(a) and (b) of the EPA Act ) was the second most common offence (15.5%) with 78 offences. Contravene any condition of a licence (s 64(1) of the POEO Act ) was the third most common environmental offence (11.0%) with 55 cases. Waste offences filled the fourth 361 Judicial Commission of NSW, Judicial Information Research System, Sentencing Statistics. JIRS sentencing statistics form one component of the JIRS database. They provide a guide to the pattern of sentences imposed by the courts for criminal offences. The Statistics together with the Principles and Practice, Case Summaries and Judgments of the various courts form a package of information intended to assist the courts in achieving consistency in imposing sentences. The High Court decisions of The Queen v Pham (2015) 256 CLR 550 (see Judicial Commission of NSW, Sentencing Bench Book 2006-, Special Bulletin 10 — December 2015) and Barbaro v The Queen (2014) 253 CLR 58 per French CJ, Hayne, Kiefel and Bell JJ at [40]–[41] address how a sentencing court should use comparable cases and statistics. A general discussion about the utility of JIRS statistics, including the relevant appellate authorities on the subject, can also be found in Sentencing Bench Book at [10-020]ff, where it is addressed as a topic with regard to achieving sentencing consistency for particular offences. 362 For an offence contrary to s 5(1) of the EOP Act (rep), the maximum penalty the Supreme Court could order was $250,000 or a term of imprisonment of seven years, or both. Whereas, in the LEC, the maximum penalty was $250,000, or two years’ imprisonment or both. Excluding contempt matters in relation to orders made for environmental planning and protection offences, this is the only known case in the LEC where a convicted environmental offender received a prison term. There is, however, the appeal case of Betland v EPA (2010) 175 LGERA 317; [2010] NSWLEC 183 where the LEC upheld a severity appeal against a custodial sentence of four months imposed by the Local Court for an offence against s 110 of the NPW Act . Pepper J at [4] held that the sentence was “manifestly excessive and totally unwarranted” and (at [72]) imposed a fine of $2,500 in lieu thereof. 363 Also includes 14 cases of pollute waters under the CW Act , which was repealed on 30 June 2006.