Posted on August 8, 2013 by

Sentencing for Environmental Offences

A developer was recently fined the sum of $32,500 after pleading guilty to clearing over 3,200 square metres of bushland along the bank of the Blacks Creek in the Cudgen Nature Reserve, in contravention of the National Parks and Wildlife Act 1974. The fine, imposed by Pain J in the Land and Environment Court, was less than 3% of the maximum which could have been imposed under the legislation and the case provides an opportunity to examine the factors the Court will consider when sentencing offenders of environmental crimes.

The National Parks and Wildlife Act 1974 (‘NPW Act’) contains a number of provisions proscribing behaviour that is likely to cause harm to the natural environment. Section 156A is one such provision, it provides:

Section 156A Offence of damaging reserved land
(1) A person must not, on or in land reserved under this Act or acquired under Part 11:
(a) remove any water other than for purposes authorised by or under any Act or for the purposes of personal use on the land, or
(b) damage or remove any vegetation, rock, soil, sand, stone or similar substance, or
(c) damage any object or place of cultural value, or
(d) cause or permit any removal or damage referred to in paragraph (a), (b), or (c).
Maximum penalty:
(a) in the case of a corporation – 10,000 penalty units, or
(b) in the case of an individual – 1000 penalty units or 6 months imprisonment, or both.

At present, s17 of the Crimes (Sentencing Procedure) Act 1999 (‘CSP Act’) provides that a penalty unit amounts to $110, making the maximum penalty for a corporation under s156A $1.1 million dollars, and the maximum for an individual $110,000.

There have been relatively few prosecutions under s156A, this affords an opportunity to examine the full range of decisions to assess the factors relevant to the sentencing of this particular environmental offence. The discussion will focus on the cases dealing with corporate offenders beginning with the aforementioned decision of Pain J in Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111.

Leda Management Services Pty Ltd

The Defendant corporation was one company in a group of companies involved in the residential development of land (‘Kings Forest Site’) west of the Cudgen Nature Reserve (‘Cudgen Reserve’). Blacks Creek runs through the Cudgen Reserve and a timber bridge on Blacks Creek marked the approximate boundary between the Cudgen Reserve and the Kings Forest Site.

In March 2011, the Defendant’s sub-contractor undertook works at the bridge site, involving the clearing of log jams and overhanging logs from the Blacks Creek, the extraction and relocation of sand to widen the channel of the creek and the clearing of an 8 metre strip of land along the northern bank some 320 metres long.

In May 2011 an employee of the Defendant discovered that the clearing works had occurred within the Cudgen Reserve. The employee immediately reported it to his management and the clearing was reported to the Office of Environment and Heritage in early June 2011.

The Defendant pleaded guilty at the earliest opportunity and Pain J proceeded directly to sentencing. After reviewing the objective and subjective factors relating to the offence her Honour made orders:

• convicting the Defendant of the offence under s156A;
• fining the Defendant the sum of $32,500 [representing a 35% discount for mitigating circumstances from the $50,000 her Honour deemed appropriate on the facts];
• requiring the Defendant to carry out works to rehabilitate the reserve;
• requiring the Defendant to publish an advertisement in accordance with a publication order;
• requiring the Defendant to pay the Prosecutor’s costs in the agreed sum of $38,000.

Chief Executive, Office of Environment and Heritage v Coffs Harbour Hardwoods Sales Pty Ltd [2012] NSWLEC 52

The Defendant corporation in this case pleaded guilty to two offences under the NPW Act, one under s118A(2) and the other under s156A. The Defendant had been engaged in logging operations on private property abutting the Jaaningga Nature Reserve (‘Jaaningga Reserve’) west of Urunga. As a result of a failure to properly identify the land boundaries the Defendant’s employee drove a bulldozer through the Jaaningga Reserve clearing approximately 4,000 square metres of land to bare earth and damaging 21 Newry Golden Wattles in the process. The 21 wattles represented approximately 0.15% of the total current known population which was classified as endangered under schedule 1 of the Threatened Species (Conservation) Act 1995.

Applying the principle of totality in the assessment of the two offences (which involved an assessment of overall criminality) his Honour Lloyd AJ held that the case warranted a penalty of $120,000 to be reduced to $85,000 for mitigating factors. $40,000 of this total amount was attributed to the breach of s156A(1)(b).

In addition to the fines, the Defendant was ordered to pay the Prosecution’s costs in the agreed sum of $26,000. Lloyd AJ also made a publication order, and various works orders intended to prevent further breaches and to mitigate the environmental effects of the Defendant’s existing breach.

Plath v Vaccount  Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202

The Defendant corporation in this case pleaded guilty to an offence under s156A(1)(b). Similar to Coffs Harbour Hardwoods, the Defendant had been engaged in logging operations on private property which shared a boundary with the Guy Fawkes River National Park (‘National Park’), and due to a failure to properly identify the boundary the Defendant inadvertently engaged in illegal logging operations within the National Park itself.

All up, 503 trees were felled, pushed over or damaged by the Defendant in the National Park, and it was estimated that replacement would take in excess of 100 years due to the maturity of the impacted trees.

Pepper J fined the Defendant $100,000 discounted by 27% for mitigating circumstances, bringing the total monetary penalty down to $73,000. The Court also granted an order pursuant to s205(1) of the NPW Act requiring the fined amount to be paid over to the Northern Rivers Catchment Management Authority to be used for general environmental purposes.

Subjective and objective factors bearing on sentence

In Leda Management Services Pty Ltd Pain J stated that ‘an appropriate sentence is to be determined after consideration of the objective and subjective matters relating to the offence’ bearing in mind what was said in Hoare v R (1989) 167 CLR 348 at 354 where their Honours Mason CJ, Deane, Dawson, Toohey and McHugh JJ stated:

‘… a basic principle of sentencing law is that a sentence … imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (see Veen v The Queen (No.2) [1988] HCA 14; (1988) 164 CLR 465, at pp 472, 485-486, 490-491, 496)’.

A review of the case law reveals the following objective factors bearing on sentence:

• maximum penalty – this is understood to be an expression by Parliament of the gravity of the offence per Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
• statutory context – in most cases the conduct of the offending corporation was found to be directly incompatible with the objects of the NPW Act
• other statutory considerations – for example, s194 of the NPW Act provides that the matters to be considered when imposing a penalty include the extent of environmental harm, the significance of the subject matter of the damage, and whether the damage could be foreseen. Section 194(2) also provides that the Court may take into consideration other matters that it considers relevant.

One of the other matters the Court will consider under s194(2) is the state of mind of the offender. In this regard, Pain J in Leda Management Services Pty Ltd stated at [36] that ‘the extent to which the offence was committed intentionally, negligently or recklessly will be objectively more serious than one not so committed’ citing Plath v Glover [2010] NSWLEC 119.

The following subjective factors were also considered in the cases as bearing upon the appropriate sentence:

• the offender’s record of previous convictions – per s21A(3)(e) of the CSP Act
• whether the offender pleaded guilty – per s21A(3)(k), a guilty plea at the earliest opportunity would attract a 25% discount
• the extent to which the defendant cooperated with law enforcement authorities – per s21A(3)(m) of the CSP Act
• whether the case called for general and/or specific deterrence – per s3A(b) of the CSP Act
• the degree to which the offender displayed contrition and remorse for the offence
• whether the case called for retribution and denunciation – per ss3A(a) and (e) of the CSP Act respectively
• the need for consistency in sentencing
• the availability and suitability of alternative orders – including rehabilitation orders under s200 of the NPW Act and publication orders under s205(1)(a)

In Leda Management Services Pty Ltd Pain J appeared to accept the submission that the costs of rehabilitation is of only marginal relevance to the quantification of any penalty. In Environmental Protection Authority v Sibelco Australia Ltd [2011] NSWLEC 160 her Honour had held that the large clean-up costs incurred by the defendant, a ‘substantial corporate entity’, were irrelevant to the determination of an appropriate penalty.

The implication is that the costs of clean-up works incurred by individual, or small corporate offenders may be considered in the quantification of monetary penalties. The cases would also suggest that the offer to undertake clean-up or rehabilitation works (if not the costs of such works) would be considered under head of cooperating with law enforcement authorities and as a demonstration of contrition.

Conclusions

An examination of the cases demonstrates the broad range of factors the Court will consider when sentencing offenders under s156A of the NPW Act.

However given that the most egregious breach (Tableland Timbers) attracted a penalty less than 10% of the maximum available, one is left to wonder as to the combination of factors that would need to arise before a court was willing to impose anything like the maximum penalty.

Whilst this blog has focussed on offences under the NPW Act, there seems to be similar reluctance by the Court to impose penalties anywhere near the maximum penalty for most environmental offences. Increases in the maximum penalty in the past have done little to increase the penalties imposed. It may be that publication orders, and remediation or rehabilitation costs (which are generally much higher than the penalties imposed), together with legal costs, are more likely to act as a deterrent than any penalty likely to be imposed by the Court.