MONOGRAPH 40 volume 1

v Research Monograph 40 Executive summary Executive summary This study examines environmental protection and planning offences prosecuted in the NSW Land and Environment Court (LEC) within the 15-year period from 2000 to 2015. It is a legal and empirical examination of the cases within that period using detailed quantitative information augmented by a comprehensive qualitative analysis of key offences. The law as it relates to sentencing and legal costs is also extensively reviewed. The study is provided in two parts: Volume 1 (this part) is the main body of the study, where the findings are detailed and discussed, and Volume 2 contains Cases Tables 1 , 2 and 3 which detail, respectively, the full complement of pollute waters offences, waste offences and native vegetation offences examined in this study. The primary data source for the study is the environmental sentencing database which was developed by the Judicial Commission of NSW (the Commission) in collaboration with the LEC. The database records a multitude of objective and subjective factors considered by the LEC in the course of sentencing proceedings. i The study identifies several areas of sentencing practice in the LEC which may require review or reform to further improve transparency and consistency in sentencing. Costs and sentencing The most critical issue is that costs are entwined in the sentencing process. This is not just an issue for the LEC but also for prosecutors bringing matters before the LEC, and for those responsible for setting policy in this area of the law. There is no other court exercising criminal jurisdiction where costs are such an integral issue in sentencing. Given that costs are now accepted in this jurisdiction as an “aspect of punishment”, ii it is imperative that all costs are known at sentence, recorded in the judgment, and acknowledged as part of the penalty imposed by the LEC for environmental offences. This would require a change to the law and perhaps a return to the original legislative position where costs orders were quantified for the benefit of the court prior to sentencing. iii This study traces the law in relation to costs from the original legislative position to the current law. iv Typically, costs are “as agreed or assessed” and there is currently no judicial requirement to specify the quantum of costs at sentence. Determining the extent to which costs (known and unknown) impact upon the sentencing process and the penalty is a focal point of this study. Criminal liability This study explores how criminal liability is framed for environmental offences with reference to the landmark Canadian Supreme Court decision in 1978 of R v Sault Ste. Marie , v considered by the High Court of Australia in He Kaw Teh v The Queen , vi and also the leading intermediate appellate court decisions of EPA v N , vii NSW Sugar Milling Co-Op Ltd v EPA viii and EPA v Ampol Ltd . ix i The objective factors used in this study recorded for the principal offence are: objective seriousness, financial reasons, foreseeability of harm to the environment, practicable measures taken (before and during harm), control over causes, state of mind, level of environmental harm, and complying with supervisor’s orders. The recorded subjective factors are: prior record, co-operation, contrition or remorse, prior good character, plea, and diminished means to pay. The additional factor of whether the totality principle was applied by the court is also a factor used in this study. ii EPA v Barnes [2006] NSWCCA 246 (“ Barnes ”) per Kirby J at [78], [88]; Harris v Harrison (2014) 86 NSWLR 422 (“ Harris ”) per Simpson J at [100]–[103]. See also Appendix D for a list of 56 NSWLEC cases which specifically apply the sentencing principle relating to costs as expounded in Barnes at [78] and [88] . iii See discussion of Land and Environment Court Act 1979, s 52 in Original mandatory requirement to specify costs at [1.3.1]. iv See The current law on costs at [1.3.3]. v [1978] 2 SCR 1299 per Dickson J at 1325–1326. See general discussion at [1.2.3]. vi (1985) 157 CLR 523 per Gibbs CJ (Mason J agreeing) at 533–534, per Dawson J at 592. vii (1992) 26 NSWLR 352. viii (1992) 59 A Crim R 6. ix (1993) 81 LGERA 433. Ampol unsuccessfully appealed in Ampol v EPA (unrep, 26/10/95, NSWCCA).