MONOGRAPH 40 volume 1

52 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW Case study 1 continued The court found, beyond reasonable doubt, that the offender knew that: • the pumping activities were illegal and would harm or were likely to harm the environment • putting large quantities of effluent into the river was likely to pose a public health risk • the effluent contained sewerage and other matter which was likely to be infectious and thus cause harm to the environment, including rendering oysters farmed in the vicinity to be noxious and detrimental to the safety of persons consuming them. As reported by the court, the case contained a number of aggravating features: The fact that the offence was committed deliberately, together with your [the defendant’s] evidence and attitude during the trial, does not fit comfortably with expressions of remorse or contrition. Your actions were not an isolated or single act of pollution, as are most cases that come before the Court. It was a deliberate act repeated a number of times a week for the 128 weeks of the offence period. That is to say, I must have regard to the volume of sewage illegally discharged and the period during which it was discharged. It was, as I have said, done for the motive of financial gain. It had the most serious consequences of environmental harm and likely environmental harm imaginable. Moreover, harm to the environment in this instance affects not one or two people but the community as a whole. You were aware that it would cause harm to the environment. You were aware that what you were doing was illegal. You went to a great deal of trouble to conceal what you were doing. [No paragraph numbers.] At time of sentencing, this particular offence was described by Lloyd J as “the most serious case of environmental crime to have come before this Court”. His Honour went on to state that “I cannot imagine a worse case than this”, and found the offender “fortunate that the prosecutor chose to bring these proceedings in this Court rather than in the Supreme Court, since the penalty scale is lower for proceedings brought in this Court”. The offender was sentenced to 12 months’ imprisonment, consisting of a minimum term of nine months and an additional term of three months. The offender was also fined $250,000 — the maximum fine available to the LEC at the time for the s 5(1) offence under the Environmental Offences and Penalties Act 1989 (rep) offence — and ordered to pay the prosecutor’s costs of $170,000.