Posted on June 10, 2025 by Anna Sinclair and Nathan Sloan 15

Sentencing Principles Explained – Q & A #3

This is the final blog in our series about sentencing principles in criminal prosecutions commenced by local councils and government departments. Our previous blogs can be read here: Sentencing Principles Explained – Q & A #1 and here: Sentencing Principles Explained – Q & A #2.

In this blog, we answer a number of questions that we are regularly asked about the orders a prosecutor can seek upon a conviction for an environmental or planning offence, the payment of any penalty imposed by the court, and whether a court can take into account the costs an offender may be ordered to pay when determining the monetary penalty.

These matters are important for a prosecutor to keep in mind as it can determine what offences it charges, and what court it commences the prosecution proceedings in, as well as the specific orders it should seek upon conviction to ensure it receives the full monetary penalty from the offender.

Q1 – What orders can a prosecutor seek for an environmental or planning offence?

Monetary penalty

The primary order that the prosecutor can seek for an environmental or planning offence is for the payment of a monetary penalty.

In the Local Court, the jurisdictional limit of the court for offences under the Protection of the Environment Operations Act 1987 (POEO Act) is $220,000, and $110,000 for offences under the Environmental Planning and Assessment Act 1979 (EPA Act). There is no jurisdictional limit for offences prosecuted in the NSW Land and Environment Court (LEC).

Additional orders 

Whether the prosecutor can seek other orders, including, for example, restoration/remediation or to publicise the offence, depends on the legislation the offence was brought under, and the court that the prosecution was brought in.

POEO Act

Under the POEO Act (e.g. for offences such as water pollution, land pollution, using a place as a waste facility without lawful authority), Part 8.3 of that Act provides that both the LEC and Local Court can make orders for:

• restoration or prevention of any harm caused to the environment by the commission of the offence,
• costs, expenses and compensation for the prevention, control or mitigation of any environmental harm caused by the commission of the offence, or making good any resulting environmental damage, or compensation for loss or damage to property,
• investigation costs and expenses (which means costs and expenses in relation to taking samples, conducting any inspection, test, measurement or analysis, or transporting, storing or disposing of evidence), and
• a range of other orders, including ordering the offender:
  • to publicise the offence and its environmental and other consequences,
  • to take specified action to notify specified persons or classes of persons of the offence, and
  • to attend, or cause an employee or employees or contractors to attend a specified training course.

We note that under Part 8.3 there are a number of orders (not set out above) that only the LEC has the power to make, such as ordering the offender to pay a penalty that represents any monetary benefits acquired or accrued by the offender as a result of the commission of the offence.

EPA Act

In respect of offences under the EPA Act (e.g. unlawful or prohibited development), the above orders under Part 8.3 of the POEO Act apply, but only in relation to proceedings before the LEC, and subject to some modifications prescribed under s295 of the Environmental Planning and Assessment Regulation 2021.

In respect of proceedings in the Local Court, the only order that court can make in addition to a monetary penalty is where the person is guilty of an offence involving the destruction of or damage to a tree or vegetation. The court may, in addition to or in substitution for any monetary penalty, direct the person to plant new trees and vegetation, and maintain those trees and vegetation to mature growth, and to provide security for the performance of any such obligation.

Determining the appropriate court

The consequence of this is that particularly for EPA Act offences, a prosecutor needs to carefully consider whether it should commence prosecution proceedings in the Local Court or the LEC.

For example, if the offence does not involve the destruction of or damage to a tree or vegetation, or if the prosecutor wants broad orders for restoration (and not just an order for the planting of new trees) then it either has to commence proceedings in the LEC, or commence prosecution proceedings in the Local Court and/or issue a statutory order or commence civil enforcement proceedings in the LEC to require the restoration or remediation of the land.

Alternatively, a prosecutor may consider whether the offence also constitutes an offence under the POEO Act, which means it could prosecute the matter in the Local Court and seek orders for restoration or remediation. Such an example may be landfilling, which may be an offence under both the EPA Act and the POEO Act.

Q2 – How can a council ensure that it receives the penalty amount?

Pursuant to s694(1) of the Local Government Act 1993 (LG Act), any penalty or fine imposed by a court for an offence that a council has charged under any Act is to be paid to the council, and to be allocated by the council to the council’s consolidated fund.

In any sentencing proceedings, a council should seek an order that the monetary penalty imposed by the court is to be paid to the Registrar of the court, who is to pay such monetary penalty to the council pursuant to s694(1) of the LG Act. This ensures that the council receives the full penalty amount when paid.

By reason of the Fines Act 1996 (Fines Act), prosecutors other than local councils, may only be entitled to recover one-half of the penalty amount, with the rest being paid into the State’s Consolidated Fund.

Q3 – Does the court take into account the costs an offender may be ordered to pay when determining the monetary penalty?

In criminal proceedings costs are not awarded by way of punishment of the unsuccessful party, rather they are compensatory: Latoudis v Casey (1990) 170 CLR 534. Under ss 4 and 6 of the Fines Act, a court is required to consider an offender’s means when imposing a fine. However, the NSW Court of Criminal Appeal has held that this does not convert an order for the payment of costs into a species of punishment (see Safework NSW v Williams Timber Pty Ltd [2021] NSWCCA 233).

Notwithstanding, a court will generally have regard to the payment of the prosecutor’s costs, but it is required to be mindful that the payment of costs is not a reason for reducing any penalty to be imposed in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence: Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170.

Thank you for joining us in this Q & A series, and we hope that you have found the blogs informative. To discuss this blog, or either of our earlier blogs, please leave a comment or contact Anna Sinclair on 8235 9713 or Nathan Sloan on 8235 9732.