MONOGRAPH 40 volume 1

70 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW Overall, 47 offenders received an Additional Order (without also having to pay a fine) for their principal offence. The average value of an Additional Order was $57,586 with a median value of $50,000. The value of the most common Additional Order was equally $28,000 (n=4) and $80,000 (n=4). The next most common was $50,000 (n=3). The vast majority of offenders (94%) that received a pecuniary Additional Order (without also having to pay a fine) were corporations. The average value of an “Additional Order only” for a corporation was $60,785 (median: $50,000). In contrast to the average value for corporations, the mean and median value of an “Additional Order only” was $11,000 for a small business owner and the mean was $10,000 for an “ordinary Joe” individual. “Special liability” offenders were not sentenced by way of an “Additional Order only” in the study period. In dollar terms, the largest Additional Order was $175,000 imposed on Orica Australia 410 for the offence of “breach of a licence condition … contrary to s 64(1) of the POEOA, by failing to operate the Ammonia Plant in a proper and efficient manner” ( EPA v Orica Aust Pty Ltd (the Hexavalent Chromium Incident) ). 411 The Additional Order was a financial contribution to a specified environmental project within the affected region: pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997 the defendant is directed to pay to the NSW Office of Environment and Heritage — National Parks and Wildlife Service, within 28 days of this order, the amount of $175,000, as a contribution to the Stage 2 Restoration of Kooragang Dykes project to address the deterioration of dykes in the Hunter Wetlands National Park. 412 Orica was ordered to pay another $175,000 to a specified environmental project for a second offence, which involved a “breach of licence condition … contrary to s 64(1) of the POEOA , by failing to operate plant and equipment, namely the Ammonium Nitrate Manufacturing Facility … in a proper and efficient manner (see EPA v Orica Aust Pty Ltd ( the Ammonia Incident) ). In this case, Orica was ordered to contribute monies to another specified environmental project within the affected region: pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997 the defendant is to pay to the NSW Office of Environment and Heritage – National Parks and Wildlife Service, within 28 days of this order, the amount of $175,000 to contribute to the Tomago Wetland Rehabilitation Project to restore the ecological character of this part of the Ramsar Wetland. 413 In the period from January 2000 to February 2015, the LEC ordered environmental offenders to pay a total of over $2.7 million to environmental projects and other restorative justice initiatives. This is separate, distinct from, and additional to any clean-up costs that the offender may have had to pay following the commission of the offence. Given the many and diverse differences between environmental protection (predominantly pollution) offences and environmental planning offences, the rest of the report will separately examine and discuss these broad and distinct categories of environmental offences. 410 Orica Australia Pty Ltd (www.orica.com ) is an Australian-based multinational corporation that is the largest single supplier of commercial explosives and blasting systems to the mining, quarrying and infrastructure sectors, and a leading global supplier of mineral processing chemicals and services. Orica appeared as the defendant in eight of the 55 (14.5%) cases before the LEC for contravene licence offences across the period studied. In chronological order, the following are the penalties that Orica received for the eight identified contravene licence offences: a fine of $10,500; and, seven separate Additional Orders involving environmental restoration projects costed at $70,000, $122,500, $87,500, $175,000, $175,000, $35,000 and $35,000. 411 [2014] NSWLEC 106. 412 ibid at [Orders, 51019 of 2011 (2)]. 413 [2014] NSWLEC 107 at [Orders, 5110 of 2012 (3)].