MONOGRAPH 40 volume 1

73 Research monograph 40 2. Findings • No environmental harm was recorded for the offences committed by 105 offenders (28% of all environmental protection offences). Generally, “special liability” offenders (42%) were more commonly linked to environmental protection offences resulting in “no actual damage”. Nonetheless, in all cases where it was assessed that there was no environmental harm, it needs to be remembered that illegal environmental activity was detected, charged and prosecuted. Furthermore, the potential for great harm — even potentially devastating damage to the environment — is not exempt from being included under this category. 419 In particular, where the pollution offence involved carcinogenic materials (eg asbestos) or other substances (eg pesticides) proven to be hazardous to human life, 420 the potential for harm may have been great even though no actual harm to the environment, to persons or to non-human life eventuated. State of mind In Kempsey Shire Council v Slade , Biscoe J stated: The common law concept of causation is concerned with determining whether some breach of a legal norm was so significant that, as a matter of common sense, it should be regarded as a cause of damage. Because the present task is one of statutory construction, the common law concept of causation must yield to the context and the statutory terms or objects … The context is a statute relating to safeguarding the environment and the public from pollution. It is an example of a strict liability, public welfare law, regulatory in substance, where principles of vicarious liability are readily imposed (other examples are consumer protection and fair trading laws) and there is no need to prove intention, any other mental element or negligence in order to establish liability. 421 Although mens rea is not an element of many environmental protection offences — because of their strict liability 422 — the state of mind of an offender at the time of the commission of the offence, nonetheless, remains relevant. 423 As stated in Wingecarribee Shire Council v O’Shanassy (No 6) , this is because “a strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed inadvertently”. 424 The Chief Judge of the LEC, Preston CJ of the LEC, has elaborated on the elements of a “culpable” mind: The more culpable the state of mind, the more the severe the punishment ought to be. Culpability turns on the offender’s purpose, the extent of the offender’s knowledge of the circumstances surrounding the conduct, the conduct itself, its results, and the reason for the offender’s behaviour. 425 Of the environmental protection offences dealt with in the study period, 55% that were committed by “ordinary Joe” individuals were found by the LEC to have been committed intentionally. Similarly, 42% of environmental protection offences committed by small business owners, and almost one-third (31%) committed by “special liability” offenders, were considered to have been “intentional” in nature. In contrast, only 12% of environmental protection offences committed by 419 For example, in EPA v Obaid [2005] NSWLEC 171 per Lloyd J at [49]: “Although there is no evidence of actual harm to the environment in this case, the risks created by the stockpiling of large amounts of tyres at all of the sites are obvious and potentially catastrophic”. 420 On the potential harm to human health emanating from asbestos waste offences see EPA v Ashmore [2014] NSWLEC 136; and on the potential for serious health risks arising from the illegal pesticide use, see EPA v Mark Peters (2006) 153 LGERA 238; [2006] NSWLEC 612. 421 [2015] NSWLEC 135 per Biscoe J at [24] (citations removed). 422 B Preston, above n 69, p 147, fn 44. The footnote, in part, reads: “For example, offences against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) and tier 2 offences under the Protection of the Environment Operations Act 1997 (NSW) [are strict liability offences]”. 423 B Preston, above n 69, pp 147–148. 424 [2015] NSWLEC 138 per Pepper J at [172] (citations removed). 425 Garrett v Williams [2006] NSWLEC 785 at [108] .