MONOGRAPH 40 volume 1

Executive summary 9
1. Introduction 19
1.3 Costs as a sentencing factor 34
1.3.1 Original mandatory requirement to specify costs 34
1.3.2 Removal of requirement to specify costs 34
1.3.3 The current law on costs 35
1.3.4 The LEC's application of costs principles 36
1.3.5 Costs and the correct forum 39
1.4 Costs and means to pay 42
1.4.1 Costs and the proportionality principle 44
1.5 Penalties 45
1.6 Environmental offences 48
1.6.1 Crimes against environmental protection laws 48
1.6.1.1 Defining environmental harm 49
1.6.2 Crimes against environmental planning laws 52
1.6.2.1 Harm in the context of economically sustainable development 52
3. Discussion 157
3.1 A necessary departure from a conventional sentencing analysis 157
3.2 Key findings on costs 160
3.3 Criminal liability 161
3.4 Charging practices 162
3.5 The application of sentencing principles 165
3.6 Culpability and the De Simoni principle 165
3.7 Jurisdictional ceiling of the Local Court 167
3.8 Penalties 167
3.9 Factoring the type of individual offender into the analysis of sentencing 168
3.10 Resolving costs as a sentencing factor 170
Appendices 172
Appendix A 172
Appendix B 173
Appendix C 175
Appendix D 178
Selected bibliography 180
Tables 7
Table 1: Fines imosed for environmental planning and protection offences in the LEC: Corporations and Individuals – 200 to 2015 (principal offence only) 44
Table 2: Tier 1 offences under the POEO Act in the LEC – 2000 to 2015 (principal offence only) 66
Table 3: "Top 10" environmental planning and pollution offences convicted in the LEC – 2000 to 2015 (principal offence only) 68
Table 4: Environmental planning and protection offences in the LEC by Class of Offender – 2000 to 2015 (principal offence only) 74
Table 5: Penalties imposed for environmental planning and protection offences in the LEC by Class of Offender – 2000 to 2015 (principal offence only) 75
Table 6: Fines imposed for environmental planning and protection offences in the LEC by Class of Offender – 2000 to 2015 (principal offence only) 76
Table 7: Fines greater the $110,000 imposed by the LEC for environmental offences – 2000 to 2015 (principal offence only) 80
Table 8: Proportion of fines greater than the Local Court jurisdictional limit ordered by the LEC for environmental offences (principal offence only) by jurisdictional limit of Local Court: pre- and post-Harris 83
Table 9: Value of Additional Orders imposed for environmental planning and protection offences in the LEC – 2000 to 2015 (principal offence only) 87
Table 10: Environmental protection offences in the LEC: objective and subjective factors by Class of Offender – 2000 to 2015 (principal offence only) 90
Table 11: Environmental planning offences in the LEC: objective and subjective factors by Class of Offender – 2000 to 2015 (principal offence only) 104
Table 12: NSW pollute waters legislation: present and past statutory offences and associated maximum penalties – Tier 2 offences 111
Table 13: NSW waste offences legislation: present and past statutory offences and associated maximum penalties – Tier 2 offences 128
Table 14a: Monetary payments imposed by the LEC by offence type – single offence, fined, prosecutor's costs specified (current offences and sentencing regimes) 155
Table 14b: Monetary payments imposed by the LEC for waste offences – two or more offences or counts, fined, prosecutor's costs specified (current offences and sentencing regimes) 156
Figures 7
Figure 1: Level of environmental harm for environmental planning and protection offences in the LEC – 2000 to 2015 (principal offence only) 58
Figure 2: Objective seriousness of environmental planning and protection offences in the LEC – 2000 to 2015 (principal offence only) 59
Figure 3: Distribution of penalty types for environmental planning and protection offences in the LEC – 2000 to 2015 (principal offence only) 61
Figure 4: Level of environmental harm for environmental planning and protection offences in the LEC – 2000 to 2015 (principal offence only; "Top 10" offence categories) 71
Figure 6: Distribution of fine amounts for environmental planning and protection offences in the LEC by Class of Offender – 2000 to 2015 (principal offence only) 76
Figure 7: Percentage distribution of fine amounts for environmental planning and protection offences in the LEC by Class of Offender – 2000 to 2015 (principal offence only) 78
Figure 8: Percentage of fines ordered in the LEC that was less than the jurisdictional limit of the Local Court at the time of sentencing – by sentencing regime – 2000 to 2015 (principal offence only) 84
Figure 9: Change in fine amounts and quantum of costs orders for pollute waters offences by sentencing regime – single offence, fined, costs specified – 2000 to 2015 118
Figure 10: Change in quantum of Additional Orders and costs orders for pollute waters offences by sentencing regime – single offence, Additional Order in lieu of fine, costs specified – 2000 to 2015 120
Figure 11: Environmental planning offences in the LEC – average fines, prosecutor's costs by offence type – single offence, fined, prosecutor's costs known – 2000 to 2015 139
Abbreviations 8

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