CASE TABLES Vol 2

Published in Sydney by the: Judicial Commission of NSW Level 5, 60 Carrington Street, Sydney NSW 2000 DX 886 Sydney GPO Box 3634 Sydney NSW 2001 www.judcom.nsw.gov.au National Library of Australia Cataloguing-in-Publication entry Creator: Cain, Michael, author. Title: Transparent and consistent sentencing in the land and environment court of NSW: orders for costs as an aspect of punishment/ Michael Cain, Hugh Donnelly. ISBN: 9780731356379 (hardback) Notes: Includes bibliographical references. Subjects: Environmental protection — New South Wales. Environmental law — Australia — Cases. Sentences (Criminal procedure) — New South Wales. Other Creators/Contributors: Donnelly, Hugh, 1965- author. Judicial Commission of New South Wales. © Judicial Commission of NSW 2017 This publication is copyright. Other than for the purposes of, and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior permission. Enquiries should be addressed to the publisher. The views expressed in this monograph are the views of the individual authors and do not represent any official views of the Judicial Commission of NSW, nor are they necessarily shared by members of the staff of the Commission. Whilst all reasonable care has been taken in the preparation of this publication, no liability is assumed for any errors or omissions. Acknowledgements The authors would like to thank Amanda Jamieson (Senior Research Officer, Legal) and Ryan Schmidt (Research Officer) for their verification work on the Cases Tables and data checking; the Research Trainees of the Judicial Commission, Amelia Loughland, Alexandra McPherson and Peter Zivkovic for their work checking the details of cases, verifying citations and proofreading earlier drafts; and Veronica Roby (Senior Analyst Programmer) for extracting the data from the Judicial Commission’s environmental crime sentencing database. The authors would also like to thank Pierrette Mizzi (Manager, Research and Sentencing) for her helpful feedback and the work of Maree D’arcy (Librarian) and Stephen Cumines (Manager, Lawcodes) of the Judicial Commission of NSW. Editor: Phillip Byrne Proofreading: Antonia Miller Graphic design and typesetting: Lorraine Beal Printed by: ASAP Press CASES TABLES Explanatory notes Cases Table 1 (pollute waters offences), Cases Table 2 (waste offences) and Cases Table 3 (native vegetation offences) present in a structured table format all relevant offences sentenced by the Land and Environment Court of NSW (LEC) in the 15-year period from January 2000 to February 2015. A comprehensive discussion of these three environmental offences is provided in Volume 1 , the main study, M Cain and H Donnelly, Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment , Research Monograph 40, June 2017, at sections [2.4.1], [2.4.4] and [2.4.8] respectively. In order to understand the sentences imposed by the LEC, it is necessary to group the cases according to specific offence and penalty provisions. This is necessary where Parliament has repeatedly increased the maximum penalty for environmental offences or has altered the ingredients of particular offences. An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased. In the Cases Tables , the offences are categorised according to discrete offence and penalty regimes. For example, for the offence of pollute waters under s 120 of the Protection of the Environment Operations Act 1997, Cases Table 1 has two penalty regimes to reflect the changes in maximum penalties for this offence. Pollute waters offences sentenced under the repealed Clean Waters Act 1970 are presented separately as a third regime. The cases are further ordered and grouped to enable a “like-with-like” comparison. Cases are differentiated on the basis of three important characteristics: • the nature of the offending (single offence; multiple offences under the one Act; or multiple offences under different Acts) • the penalty (fine; Additional Order; other specified penalty; or penalty combination) • whether the quantum of the prosecutor’s costs were available to the court at the time of sentencing (or were still to be determined by agreement or assessment). The particular combination of characteristics — for example “single offence, fined, prosecutor’s costs known” — was then used as the basis to stratify the cases within each sentencing regime. Additional information is given on each case including citation details (the medium neutral citation is provided for each case rather than any reported citation), the type of offender, and important factors determined by the LEC, such as the level of environmental harm and the objective seriousness of the offence. The quantum of the fine and any other monetary component of the punishment are presented including the prosecutor’s legal and investigative costs. Where appropriate, mean and median values for fine amounts, prosecutor’s costs, the value of any environmental restorative projects, and the “total” pecuniary punishment are also provided. A short description of each case is also given. The main features of each case are highlighted using pinpoint paragraph references to the court’s judgment. Additional detail is provided for those LEC cases involving environmental offences sentenced under the current sentencing regime, that is, where the offence was dealt with under offence and penalty provisions still prevailing at the date of publication of this study.