MONOGRAPH 40 volume 1

58 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW Half (n=14) of all conditional discharges (ie s 10 dismissals and s 10 bonds), in the study period were imposed on individual offenders who were “ordinary Joe” citizens. Individuals subject to “special liability” provisions also received relatively high numbers of s 10 conditional discharges (n=12). There was only one instance each, in the period examined, where a corporation or “small business owner” received a s 10 dismissal; and no instance where either of these classes of offender received a s 10 bond. Fines were the most common penalty across all classes of environmental offender, although comparatively speaking, fines represented a higher proportion of penalties for small business owners (75%) and “ordinary Joe” individuals (64%). Fines in combination with Additional Orders were more commonly handed down to corporations (67%) than any other class of offender. This was also the case for Additional Orders imposed without fines: 44 of 47 (94%) were imposed on corporations. Three Additional Orders without a fine — all three involving “restoration or enhancement” projects consistent with the provisions of s 250(1)(c) of the POEO Act — were imposed by the LEC: two on offending small business owners and one on an “ordinary Joe” offender. In the study period, the most serious penalty for an environmental offence was a CSO. Three CSOs were imposed on “special liability” offenders, one was imposed on an individual conducting a small business, and three CSOs were ordered on individuals who did not have a commercial or financial interest/motive for committing the crime: each could be described as an “ordinary Joe”. Class of offender Total Corporation Individual Special liability offender Small business owner “Ordinary Joe” Offenders fined  (n) 249 37 79 52 417 (%)^ 59.7 8.9 18.9 12.5 100.0 Fine imposed Mean $43,682 $43,087 $30,249 $19,737 $38,099 Median $25,000 $25,000 $15,000 $11,625 $22,000 Middle 50% range $15,000–$50,000 $10,000–$38,500 $8,000–$40,000 $5,250–$25,125 $10,000–$40,000 Lowest $10 a $3,000 $200 $400 $10 a Highest $1,200,000 $510,000 $160,000 $175,000 $1,200,000 Most common equal $20,000 $20,000 $5,000 equal $3,500 $20,000 equal $25,000 equal $7,500 equal $30,000 equal $20,000 Next most common $15,000 $30,000 equal $10,000 Multiple amounts $30,000 equal $15,000 Sum $10,877,018 $1,594,250 $2,389,690 $1,026,300 $15,887,258 ^ Percentage of the total number of fines (including fines plus Additional Orders) 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 chose to impose a nominal fine of $10 on the company for the same offence. Table 6: Fines imposed for environmental planning and protection offences in the LEC by Class of Offender — 2000 to 2015 (principal offence only)