MONOGRAPH 40 volume 1

55 Research monograph 40 2. Findings 2.2.5 The different types of “individual” offenders Tables 4, 5 and 6 show a more nuanced breakdown of “individual” offenders sentenced for environmental offences in the study period. In these tables, the generic category “individual” has been separated into the discrete categories of “special liability” offender, “small business owner” and “ordinary Joe” individual offenders. 364 “Corporation” remains as its own category of offender. The separation of “special liability” offenders is particularly important given that these designated individuals (ie corporation directors and others concerned in the management of the corporation) 365 are dealt with by the LEC under the same provisions as corporations (except that the maximum penalty for individuals not corporations apply), and may be proceeded against and convicted regardless of whether or not the corporation has been proceeded against or has been convicted. 366 One could also argue, depending on the size of the small business, that individuals who run or manage small businesses would be dealt with more harshly when the environmental offence was committed in the context of the operation of the business, particularly if there was financial motivations underlying the commission of the offence. Small businesses may also need to hold environmental protection licences for scheduled activities, 367 unlike the “ordinary Joe” individual offender. Generally, penalties for offences where an environmental protection licence is held by an offender, are likely (and expected) to be more severe than penalties imposed on an offender who is not required to hold such a licence. “Special liability” offenders represented 10.4% of all offenders in the study period, and one- quarter (25.1%) of individual offenders. Small business owners made up just under 17% of all offenders and some 41% all individual offenders. “Ordinary Joe” individuals made up around one in seven offenders (13.9%), and over one-third of all individual offenders. 2.2.5.1 Offences committed Table 4 shows that there are major differences in the types of environmental offences committed by each class of offender. Firstly, corporations are highly prominent in terms of environmental pollution offences, notably: • 91.5% (108 of 118) of all pollute water offences in the study period involved a corporate offender. Furthermore, pollute waters offences represented around 37% of all principal offences committed by corporations • 92.7% (51 of 55) of all contravene licence offences were committed by a corporation • 90.0% (nine of 10) of air pollution offences were committed by a corporation. 364 “Corporation” remained as its own category. The sub-categories of the original offender type, “Individual”, namely “special liability” offender, “small business owner” and “ordinary Joe” individual, were created through running a sophisticated search program to identify LEC judgments which contained targeted “search” terms. The target search terms included: “s 169” (and its variants, eg, “section 169”, “ss 169”, etc), “special executive liability”, “director”, “manager” and “company”. The pattern of search “hits” was used to determine which sub-category each non-corporation offender was placed. The judgments of all cases assigned to each sub-category of “Individual” were checked to validate the sub-classification of individual offenders to the new categories and, where necessary, cases were re-assigned to the correct sub-category. In referring to individuals under this new classification system, the term “ordinary Joe” is also used in the text. The gender neutral term would be “ordinary Jo/Joe”. Also see above n xlvii in the Executive Summary . 365 In EPA v Alcobell Pty Ltd, EPA v Campbell [2015] NSWLEC 123, Pain J at [120]–[121] referred to the co-defendant, the sole director and shareholder in the company, as “the guiding mind”. The EPA describes directors and managers of corporations as “the directing mind and will of the corporation [who] control its activities” ( EPA prosecution guidelines , above n 310, p 8). Ample authority exists for the proposition that a defendant company charged with a pollution offence can be found liable for that offence based on vicarious liability for the conduct of its employees: Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715. The issue of vicarious liability was also considered by the CCA in Director-General of the Dept of Land and Water Conservation v Greentree (2003) 140 A Crim R 25 at [84]. In this case, it was determined in a unanimous decision at [108] that there where “common elements in the counts against [the applicant] personally and those against him as a director. The differences are that in the count against [the applicant] personally it is alleged that he cleared the native vegetation, whereas in the counts against him in his capacity as a director it is alleged that the corporation cleared the native vegetation and that he was a director of the corporation”. 366 POEO Act , s 169(1)–(2). 367 See POEO Act , Ch 3.