Posted on May 22, 2025 by Anna Sinclair and Nathan Sloan 12

Sentencing Principles Explained – Q & A #2

Introduction

This is the second blog in our series about sentencing principles in criminal prosecutions commenced by local councils and government departments. Our first blog can be read here: Sentencing Principles Explained – Q & A #1.

In this blog, we answer a number of questions we are regularly asked in respect of what evidence a prosecutor needs to collect, and how it should be collected for the purpose of sentencing for environmental or planning offences.

It is critical that from the beginning of an investigation a prosecutor understands what evidence is relevant to sentencing for an offence, and that it seeks to collect that evidence to ensure that it secures a sentence that properly reflects the nature and extent of the offending conduct, as well as the prosecutor’s objectives in commencing the prosecution.

Q1 – What evidence should a prosecutor collect for the purpose of sentencing, and how should it be collected?

In Q1 of our first blog we looked at the factors that a court will take into account when determining the objective and subjective seriousness of an offence, and the penalty to be imposed. A prosecutor must seek to collect evidence in respect of all relevant factors it wishes to rely on in a given case.

For environmental and planning offences the key factors generally include:

• the environmental harm caused by the commission of the offence,
• the foreseeability of the risk of harm to the environment by the commission of the offence,
• the practical measures available to the offender to avoid harm to the environment,
• the offender’s control over the causes of harm,
• the state of mind of the offender in committing the offence,  and
• whether the offence was committed for financial gain.

Collecting evidence in respect of environmental harm, the state of mind of the offender and whether the offence was committed for financial gain can generally be the most difficult, and require greater resources from the prosecutor in its investigation of the offence. We focus on the collection of evidence in respect of those factors below.

Environmental harm

Environmental harm caused by the commission of an offence is a critical factor in the assessment of its objective gravity. The concept of “harm” in the context of environment and planning offences is broad and includes both actual and the potential or risk of harm. Harm can also be direct or indirect, individual or cumulative.

Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty. Further, if the harm is substantial, it is an aggravating factor under s21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (CSP Act).

The types of harm that can occur from environmental or planning offences are wide and varied, but generally including harm to flora and fauna, harm to human health or amenity impacts (e.g. noise, dust or odour emissions), flooding impacts and property damage.

Collecting evidence of environmental harm

Evidence of environmental harm must generally be established by a suitably qualified expert (e.g. ecologist, civil/environmental/geotechnical engineer, scientist, air quality consultant, etc), who can assess the harm caused by the offence and provide an expert opinion to the court.

Depending on the nature of the harm, it can be important to obtain evidence of the harm as early as possible, as it may have disappeared or subsided during later inspections of the incident. For example, in the case of water pollution, the impact of the harm is often the most significant and easiest to determine at the time of, or soon after the pollution incident has occurred. In tree clearing matters, evidence of the number and species of trees that have been cleared (e.g. roots/branches) may be there at the time of the incident, but removed from the site and destroyed soon after.

It is therefore important for an officer that is initially investigating an incident to either take with them a suitably qualified officer who can assess the harm caused by the incident, or to take sufficient photographs, videos and potentially samples of the impact the incident has had on the environment, which can be later considered by the expert.

In the case of water pollution, in order to be able to establish the actual harm the pollutant has had on the waters it is critical that water samples are taken (and sent for testing) so that the impact of the pollutant on the waters can be assessed. Samples should be taken both upstream and downstream of where the pollutant is entering the waters, and evidence should be collected that excludes that there was another source that polluted the waters.

State of mind of the offender

Environmental and planning offences are generally strict liability offences, which means that mens rea is not an element of the offence and a person can be found guilty even if they did not intend to break the law, or they were unaware of the illegality.

The state of mind of the offender is nevertheless relevant to the question of penalty, and the objective seriousness of an offence (and the penalty amount) increases if it is committed intentionally, recklessly or negligently. Those terms, in turn, mean as follows:

• Intention can be deduced from words and actions, and it “connotes a decision to bring about a situation so far as it is possible to do so — to bring about an act of a particular kind or a particular result”: He Kaw Teh v R (1985) 157 CLR 523; [1985] HCA 43 at 569.
• Recklessness is when an offender performs an act or omission, when they were aware of the risk that a particular consequence is likely to result from that act or omission. Recklessness is measured on a subjective standard (by reference to the offender). For example, in a planning offence, an offender may be reckless if they are aware that a particular act or omission requires an approval, such as by way of a development consent, but carried out the act, or fails to, anyway.
• Negligence is when an offender has acted with a degree of carelessness that shows such a disregard for the objects of the statute as to amount to a crime against the state, or an indifference to an obvious risk. It is measured on an objective standard (by reference to a hypothetical reasonable person). For example, in a planning offence, negligence refers to whether a hypothetical person in the position of the offender would have known or foreseen that the relevant act (e.g. demolition, filling or construction) can only be done in accordance with the lawful authority of a development consent.

Collecting evidence of state of mind

Evidence of any prior warnings given to the offender that an act or omission may result in a breach of environmental or planning legislation, but that they nevertheless chose to perform the act or omission can be important evidence to establish the offenders state of mind. Accordingly, any warnings given by a local council or government agency should be preferably be given in writing to the offender to ensure that there is reliable evidence that the warning was given, but ignored. If an officer gives a verbal warning on site, that officer should make a contemporaneous note that the warning was given, and then confirm the warning in writing.

Issuing notices for information and/or records to, or conducting directed interviews with the offender or other relevant persons can be very useful ways to collect evidence that establishes the offender’s state of mind. For example, in respect of planning offences questions such as whether the offender knew that development consent was required, what steps did the offender take to determine whether development consent was required, and did the offender engage any person to advise on whether development consent was required, can assist in establishing the offender’s state of mind.

Whether the offence was committed for financial gain

If an environmental or planning offence was committed for financial gain, then this is an aggravating factor under s21A(2)(o) of the CSP Act, and the offence is more objectively serious.

It can easily be speculated that an environmental or planning offence has been committed for financial gain, for example: fill material is unlawfully deposited on a property to avoid the payment of costly waste levies and fees or development is carried out without consent to increase the value of a property.

However, speculation is not sufficient, and it can be difficult for a prosecutor to prove those matters beyond a reasonable doubt. This is because a prosecutor may not obtain any express evidence (e.g. an admission) that the offence was committed for financial gain. In the absence of any express evidence, the prosecutor must establish that it is reasonable to draw the inference in the circumstances that the offence was committed for financial gain.

Collecting evidence of financial gain

In order to establish whether an offence was committed for financial gain, a prosecutor should seek to obtain evidence in respect of the reason the offence was committed, as well as any evidence of a financial gain that may have, or was, obtained by the reason of the offence.

For example, for an offence relating to unlawful development for the disposal of fill material (offence under ss4.2 or 4.3 of the Environmental Planning and Assessment Act 1979) , or the use of a place as a waste facility without lawful authority (s144 of the Protection of the Environment Operations Act 1997), a prosecutor should seek to obtain evidence in respect of where the fill material came from, whether the person disposing of the fill material paid waste levies and fees to have it disposed of, the amount that the transporters were paid to transport the waste, and whether the owner or occupier of the site that it was transported to was paid to accept the fill material, and also, how much (if anything) they paid to have the fill imported to the site.

This evidence can be obtained by issuing notices for information and/or records and conducting directed interviews with the owner or occupier of the subject site, any contractors responsible for the disposal and spreading of the fill material at the site, the transporters of the material, and the original owner of the fill material.

However, the persons involved may be unwilling to answer, or truthfully answer the prosecutor’s questions. Records can therefore be very useful evidence to argue that the court should draw an inference that an offence was committed for financial gain. A prosecutor should seek to obtain any relevant contractual documents, certificates of the classification of the fill material, any waste disposal receipts, emails or text messages of any instructions in relation to the disposal of the fill material, and bank records of any relevant parties, to seek to establish the flow of money and any financial gain resulting from the commission of the offence.

Q2 – What standard of proof applies to evidence relied on in sentencing proceedings?

In sentencing proceedings, a court can only take into account any factor that is adverse to the defendant if the prosecutor has proven it beyond reasonable doubt. By contrast, factors in the defendant’s favour may be taken into account if they can be proven on the balance of probabilities.

A prosecutor may therefore need to spend substantial time and resources obtaining evidence of matters that are relevant to sentencing in order to meet this high burden. As above, a prosecutor will also need to obtain expert evidence to establish any environmental harm. If the prosecutor does not have an internal officer who is suitably qualified to provide this evidence, then it will need to engage an external expert, which can significantly increase the costs of the proceedings, particularly if this evidence is challenged.

In practice, this means that a prosecutor will need to be strategic about what evidence it decides to lead at the hearing to obtain a penalty that adequately reflects the nature and extent of the offending conduct, as well as the prosecutor’s objectives for commencing the proceedings in the first place.

For example, a prosecutor may decide to only obtain evidence on the most substantial environmental harm, rather than all potential environmental harm due to the costs of briefing experts to provide this evidence, and the increased costs leading this evidence in a hearing. Further, a prosecutor who has commenced proceedings in the Local Court in order to run the cheapest and quickest prosecution, where its main objective is to obtain a conviction and penalty (but not the highest penalty) may choose not to lead any evidence on environmental harm, state of mind or financial gain.

That being said, during the initial investigation of any offence it is prudent for a prosecutor to seek to obtain evidence that may be relevant to sentence (particularly in respect of environmental harm) to ensure that it has the best evidence available if it chooses to lead this evidence in sentence proceedings.

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