Posted on May 13, 2025 by Nathan Sloan and Anna Sinclair 13

Sentencing Principles Explained – Q & A #1

Introduction

This is the first in a series of posts about sentencing principles in criminal prosecutions commenced by local councils and government departments.

In prosecution proceedings, a defendant will be sentenced by the Court after they are found guilty of an offence for which they were charged. The sentencing exercise involves punishing a defendant for a crime they have committed, usually in the form a financial penalty.

It is important that compliance officers understand how the sentencing process works in practice, and understand the factors that the Court will have regard to, so that they can ensure that the best possible enforcement outcomes are achieved.

Below are some of the common questions we get asked about the general principles of sentencing.

Q1 – If a defendant is found guilty of an offence, how does the Court determine the penalty?

The sentence imposed by the Court must reflect, and be proportionate to, both the objective elements of the offence and the subjective factors relating to the defendant’s conduct.

In determining the appropriate penalty, the Court will weigh up of all of the relevant factors of the offence which act to aggravate and mitigate the sentence imposed. The factors to which the Court will have regard to depends on the particular statute used to prosecute a defendant.

In all prosecutions, the Court will impose a sentence that reflects the purposes of sentencing as set out in s3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act). Those purposes include ensuring that the offender is adequately punished, protecting the community, denouncing the conduct of the offender and making the offender accountable for their actions.

The Court must also take into account the matters listed under s21A of the CSP Act in determining an appropriate sentence.  Those matters include the aggravating factors referred to in subsection (2) (including factors such as whether the offender has a record of previous convictions or if the offence was committed for financial gain), the mitigating factors referred to in subsection (3) (such as whether the offender was a person of good character, entered a plea of guilty or provided assistance to council in the investigation of, or proceedings relating to the offence), and any other objective or subjective factor that affects the relative seriousness of the offence.

In determining the objective seriousness of environmental and planning offences, the Court will also have regard to the nature of the offence, and the maximum penalty imposed by the legislation, which demonstrates the seriousness with which Parliament views the offence. The Court will also have regard to the defendant’s state of mind. The objective seriousness of an offence increases if it is committed intentionally, recklessly or negligently.

There is a list of factors which the Court must take into account for pollution offences commenced under the Protection of Environment Operations Act 1997 (POEO Act). Those factors are contained in s241 of the POEO Act, and include the extent of the harm caused or likely to be caused to the environment, the practical measures that may be taken to prevent, control, abate, or mitigate that harm, and the extent to which the person who committed the offence had control over the causes that give rise to the offence.

In prosecutions for offences under the Environmental Planning and Assessment Act 1979 (EPA Act), the Court will have regard to a number of factors that have been developed by case law, as there are no factors expressly stated under that Act. However, those factors generally reflect the matters the Court is required to have regard to under the POEO Act.

Finally, the Court will also have regard to any comparable cases, and the penalties imposed in those cases. This is because the parity principle requires that like cases should be treated alike and different cases differently.

Q2 – Can prosecuting authorities be satisfied that the Local Court will impose an appropriate penalty for an offence?

In our experience, local courts can be variable and unpredictable, due mainly to their busy and diverse case management list. It is inherently difficult to predict the sentencing outcome of any particular prosecution that is heard before a Local Court, and that outcome can depend largely on the particular magistrate presiding over the case.

Furthermore, magistrates often do not have much experience dealing with planning, environmental or other related matters (unlike the judicial officers comprising the Land and Environment Court), and that lack of familiarity with the relevant legislation can affect the sentence that is ultimately imposed by the Court.

For those reasons, it is important that authorities are prepared to explain the operation of the legislation and, more importantly, make robust and persuasive submissions on penalty in any given case. In our experience, the Court can be assisted by reference to factually comparable cases so that it has a rough penalty range to consider before imposing a sentence.

However, this can be difficult because local court judgments are not recorded (most being given ex temporaneously). Even if Council keeps a record of its own cases and refers to the sentencing outcomes of those matters, the sentencing decisions of magistrates are not binding precedents which must be followed by other magistrates, and they may be departed from.

Q 3 – Should you commence proceedings in the Land and Environment Court rather than the Local Court to ensure you obtain a higher penalty?

The variability and unpredictability of the Local Court should not be a reason to refuse to commence proceedings in that jurisdiction.

It is open to magistrates to impose high financial penalties, especially under the EPA Act and POEO Act, as the jurisdictional limit of the Court for offences under those statutes is $110,000, and $220,000, respectively. We have also seen a number of cases where a magistrate imposes a higher penalty than what the Land and Environment Court would have likely imposed for the same offence.

The Local Court must determine the sentence of a defendant based on the sentencing factors discussed above against the background of the maximum penalty of the offence being prosecuted, having regard to its jurisdictional limit.

Furthermore, there are benefits to commencing proceedings in the Local Court. Firstly, the costs associated with prosecuting an offence in the Land and Environment Court will generally exceed the costs associated with prosecuting an offence in the Local Court, and, secondly, proceedings in the Local Court are generally dealt with by the Court with greater expedition.

As a general rule, the Land and Environment Court should be reserved for more serious and complex matters, and where penalties may exceed the Local Court’s jurisdictional limit of $110,000 for offences under the EPA Act and $220,000 under the POEO Act.

Q4 – If the prosecution is a court election of a penalty notice, will the Local Court impose the penalty notice amount if the Defendant is found guilty?

The Local Court is not bound to impose a sentence equal to, or in excess of, the penalty notice amount.

Section 37 of the Fines Act 1996 provides that, if a person court-elects a penalty notice, proceedings against the person in respect of the offence may be taken “as if a penalty notice had not been issued“.

Accordingly, the penalty notice amount is no longer of relevance once a defendant elects to have the matter dealt with in the Local Court. Instead, the Local Court must sentence a defendant having regard to relevant sentencing factors explained above, including the maximum penalty for the offence (Cameron v Eurobodalla Shire Council [2006] NSWLEC 47).

Q5 – What is a “Section 10(1)(a) Order”, and when one may be ordered?

A “Section 10(1)(a) Order” refers to an order made under s10(1)(a) of the CSP Act. This is an order finding a defendant guilty of the offence but dismissing the charge and imposing no penalty.

In deciding whether to make a Section 10(1)(a) Order, the Court must have regard to the person’s character, the trivial nature of the offence, the extenuating circumstances in which the offence was committed as well as any other matter the Court thinks proper to consider (s10(3) of the CSP Act).

In our experience, magistrates may impose a Section 10(1)(a) Orders in circumstances where they consider the harm suffered as a result of the offence was minimal, or where a defendant has a reasonable excuse for the offending which does not amount to a defence to the charge.

Those orders may also be made in circumstances where a defendant does not have a history of previous convictions and there is no obvious need for a penalty providing for specific deterrence.

It is important the prosecuting authorities consider the likelihood of a Section 10(1)(a) Order before considering proceeding with a prosecution. However, even when an order is made, costs are often awarded to the authority which has a general deterrent effect on a defendant.

To discuss this post, please leave a comment or contact Anna Sinclair on 8235 9713 or Nathan Sloan on 8235 9732.