MONOGRAPH 40 volume 1

61 Research monograph 40 2. Findings 2.2.6 Fines in excess of the Local Court jurisdictional limit and Harris v Harrison In February 2012, the NSW Government increased the statutory maximum monetary penalty that the Local Court can impose for an environmental offence from $22,000 to $110,000. 372 This five- fold increase in fine amounts has been criticised as “arguably being too high” with the potential to “remove the bulk of cases from the specialised jurisdiction of the LEC”. 373 Table 7 shows that, in the period examined, there were 26 cases where the fine ordered by the LEC was greater than the Local Court’s jurisdictional limit of $110,000. 374 In all 26 cases, the maximum penalty for the offence proceeded against in the LEC was above the jurisdictional limit of the Local Court. However, two cases involved Tier 1 offences under the POEO Act , which could not be dealt with by the Local Court. 375 Therefore, Table 7 contains 24 principal offences that were not Tier 1 offences but which received a fine in excess of $110,000 — greater than the current jurisdictional maximum monetary penalty limit of the Local Court. In May 2014, the CCA handed down its decision in Harris v Harrison 376 ( “Harris” ) which was an appeal to Harrison v Harris in the first instance. 377 There were many grounds for appeal, including that the total penalty was manifestly excessive. 378 The CCA found, for a diverse number of reasons, 379 that “this was an offence that should have been treated as one suitable to be prosecuted in the Local Court”: Given the known circumstances of the offence, and the assessment of the offence as one of low objective gravity, Her Honour’s attention should have been drawn to the fact that the offence could have been prosecuted in the Local Court, and to the maximum penalty available there. 380 372 Protection of the Environment Legislation Amendment Act 2011, Sch 2[14], amended s 215(2) by replacing the reference to “200 penalty units” with “1,000 penalty units” (effective 6 February 2012). Section 215(2) (as amended) provides: “If any such proceedings are brought in the Local Court, the maximum monetary penalty that the Court may impose for the offence is 1,000 penalty units, despite any other provision of this Act”. One penalty unit is $110: CSP Act , s 17. 373 H Donnelly, Z Baghizadeh and P Poletti, “Environmental planning and protection offences prosecuted in the NSW Local Court”, Sentencing Trends & Issues , No 43, Judicial Commission of NSW, 2014, p 3. 374 It is extremely unlikely that a prosecutor would prefer to bring a “worst case” environmental offence to the Local Court given the LEC’s specialised jurisdiction. Notably, the LEC “deals with the more serious environmental crimes which often require the reception of complex expert evidence, lengthy conviction and sentence proceedings … and an in-depth understanding of sentencing principles as they relate to environmental offences”: ibid, p 3). Furthermore, A Freiberg and S Krasnostein, “Statistics, damn statistics and sentencing” (2011) 21 JJA 73, state that while the statutory maximum penalty sets the legal limit of a sentence’s authority, it also invites comparisons “with the ‘worst possible case falling within the relevant prohibition’. The maximum penalty therefore serves the purpose of providing a ‘yardstick’ which must be balanced against other factors in a case” [citations omitted] (p 78). 375 Tier 1 offences under the POEO Act (and under earlier legislation it replaced) cannot be dealt with by the Local Court (Judicial Commission of NSW, Local Courts Bench Book 1988-, “Specific penalties and orders”, at www .judcom.nsw.gov. au/benchbks/local/Protection_of_the_Environment_Operations_Act.html) . 376 (2014) 86 NSWLR 422 ( Harris ). 377 [2013] NSWLEC 105. 378 Harris v Harrison (2014) 86 NSWLR 422 per Simpson J at [5]. The total penalty at first instance included a fine of $28,000, an order to pay the prosecutor’s costs recognised as “not insignificant” (at [66]) and in the order of $75,000 (at [100]), and a newspaper advertisement taken out at the offender’s expense making public the circumstances and outcome of the offence (at [3]). 379 ibid. The reasons are articulated per Simpson J in [70]–[96] and concern the sentencing judge’s errors in assessing the objective seriousness of the offence, including the original findings of circumstances of aggravation (ie intent) and a financial motive behind the commission of the offence. The conclusions were identified by the CCA as significant to the assessment of objective seriousness but ultimately unsustainable (per Simpson J at [80]–[90]). 380 ibid at [96]–[97]. While the offence against s 91K(1) of the Water Management Act 2000, “meter tampering”, is a Tier 1 offence, under this Act it can be disposed of summarily by either the Local Court or the LEC in its summary jurisdiction: s 364. However, the Local Court is limited to a maximum monetary of penalty of $22,000 (ie 200 penalty units) or the maximum monetary penalty specified in respect of the offence, whichever is lesser. In the LEC, for an individual, the maximum penalty for a Tier 1 offence is imprisonment for 2 years or $1.1 million (ie 10,000 penalty units), or both, and, in the case of a continuing offence, a further penalty of $132,000 (ie 1,200 penalty units) for each day the offence continues.