MONOGRAPH 40 volume 1

68 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW Pearlman CJ, the then Chief Judge of the LEC, in sentencing the corporate offender in EPA v Simplot Aust Pty Ltd 402 by imposing the inaugural s 250(1)(c) orders made the following points: • An important factor in prosecutions of this kind is not so much a monetary penalty but the possibility of making orders that have the effect of enhancing the environment and encouraging its protection, and the avoidance of its degradation. • Initially, there was some doubt as to whether an “additional” order could be imposed under s 250(1)(c) without having first imposed a penalty under s 123. • Part 8.3, in which s 250 appears, however, is by s 243(1) expressed to apply where a court finds an offence proved. Section 244(2) provides that orders may be made under Pt 8.3 in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. • This provides the LEC with a wide discretion to make Additional Orders under Pt 8.3. • Such orders are extremely appropriate where the defendant has signalled its willingness to be bound to orders of the nature of those specified in s 250(1)(c). • s 251 provides that a person who fails to comply with an order imposed under Pt 8.3 is guilty of an offence. Similarly, Preston CJ of the LEC lauded the value of the restorative intent of Additional Orders, particularly where they complement “clean up” obligations and other “polluter pays” pecuniary punishments: Sustainable and economically efficient development of environmental resources requires internalising the costs of preventing and controlling pollution as well as any environmental harm itself. This is the polluter pays principle. The polluter ought to pay for the costs of remedying any on-going environmental harm caused by the polluter’s conduct. This can be done by the polluter cleaning up the pollution and restoring the environment as far as practicable to the condition it was before being polluted. The polluter ought also to make reparation for the irremediable harm caused by the polluter’s conduct such as the death of biota and damage to ecosystem structure and functioning. 403 In EPA v Byron Shire Council , 404 Talbot J was of the opinion that the “issue of the capacity to comply” with an order composed under Pt 8.3 had not previously been raised by the LEC. In the case before him, the defendant was required under the agreed conditions of the Additional Order to remove a weir across a local creek which was considered a significant barrier to fish movements. Planning and environmental approvals were required to undertake this environmental project but, even if obtained, Talbot J was of the opinion that the council was at risk of being exposed to a daily penalty of $120,000 for a “technical breach” if it wasn’t in the position to remove the weir as directed under the conditions of the order: at [18]–[22]. Due to both real and possible difficulties in completing all conditions of the proposed Additional Order, the proposal was abandoned and instead Byron Shire Council was ordered to pay a monetary fine of $30,000, which was “the understood cost of removing the weir”, 405 although it was made clear at first hearing that “some other project specified, pursuant to s 250(1)(c)” could have been put in place by the court as an alternative. 406 402 [2001] NSWLEC 264 at [20]–[26]. 403 EPA v Waste Recycling & Processing Corp [2006] NSWLEC 419 at [230]. 404 [2002] NSWLEC 128 per Talbot J at [19]. The court adjourned the proceedings to allow the convicted offender to assess the viability of a proposed environmental project. 405 EPA v Byron Shire Council [2003] NSWLEC 207 at [10]–[11]. 406 ibid per Talbot J at [21].