Sentencing in Environmental Offences (NSW)

Many environmental offences now carry substantial maximum penalties, including fines of more than a million dollars. Over the past 20 years, these penalties have increased significantly. The changes reflect a change in community expectations as to the level of responsibility that should be taken towards the environment and the appropriate penalty for such offences.

General sentencing considerations for environmental offences

If a court finds that an environmental offence has been committed, there is a wide range of factors that it can take into account when determining the appropriate penalty. The fundamental principle that the court will apply is proportionality. This means that the sentence imposed must be proportionate to both the objective circumstances of the offence and the subjective circumstances of the particular defendant.

Specific sentencing considerations for environmental offences

There are also specific sentencing considerations for environmental offences.

Objective harmfulness and foreseeability of risk of harm to the environment

The court will consider the actual short-term, medium-term and long-term environmental harm caused by the defendant’s actions, as well as the potential for harm. For example, if the defendant’s actions cause harmful chemicals to spill into a dry creek bed that normally flows into a major waterway, the environmental impact that would have resulted under normal circumstances may be a relevant consideration.

Defendant’s state of mind

Most environmental offences are strict liability offences meaning that the defendant’s state of mind (ie whether their actions were intentional, reckless or accidental) is not relevant to establishing their guilt. Despite this, stricter penalties will tend to be imposed on defendants that are shown to have acted intentionally, negligently or recklessly.

Where the defendant is a corporation, its resources and experience will also be relevant in determining whether it should have secured expert advice that might have prevented or minimised the environmental harm that occurred as a result of the offending conduct.

Parity

The approach that the Land and Environment Court of NSW and other courts have taken in relation to the sentence imposed in comparable environmental offences is a significant sentencing consideration. When determining an appropriate penalty, many judges review a large number of prior cases involving similar environmental offences. This is another reason why obtaining expert legal advice at the earliest possible opportunity in relation to actual or threatened environmental prosecutions is so important.

Guilty plea

The Land and Environment Court will generally apply a discount in penalty of 25 percent if a defendant pleads guilty at the first available opportunity (or shortly thereafter).

Other mitigating factors for environmental offences

Other mitigating factors that the court may take into account in sentencing for environmental offences include:

• genuine contrition and remorse of the defendant;
• assistance to law enforcement authorities;
• any prior convictions;
• the good character of the defendant;
• extra-curial punishment (such as loss of business and reputation as a result of the conviction);
• even-handedness;
• whether the defendant is likely to re-offend.

Sentencing considerations under specific Acts

In addition to the considerations listed in legislation, the court can also consider any other matters that it considers relevant.

National Parks and Wildlife Act 1974

Under the National Parks and Wildlife Act 1974, the specific sentencing considerations are listed at section 194:

• the extent of the harm caused or likely to be caused by the commission of the offence;
• the significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence;
• the practical measures that may be taken to prevent, control, abate or mitigate that harm;
• the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence;
• the extent to which the person who committed the offence had control over the causes that gave rise to the offence;
• in relation to an offence concerning an Aboriginal object or place or an Aboriginal area – the views of Aboriginal persons who have an association with the object, place or area concerned;
• whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee;
• whether the offence was committed for commercial gain.

Protection of the Environment Operations Act 1997

The Protection of the Environment Operations Act 1997 sets out the following sentencing considerations for environmental offences (section 241):

• the extent of the harm caused or likely to be caused to the environment by the commission of the offence;
• the practical measures that may be taken to prevent, control, abate or mitigate that harm;
• the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence;
• the extent to which the person who committed the offence had control over the causes that gave rise to the offence;
• whether, in committing the offence, the person was complying with orders from an employer or supervising employee;
• the presence of asbestos in the environment.

If you require legal advice or representation in relation to environmental offences or in any other legal matter, please contact Armstrong Legal.