Insights section 10

Issued: 27 April 2021

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A finding of guilt only: Section 10(1)(a) dismissals for environmental offences

Key point

• An order dismissing a charge after an offender is found guilty of an environmental offence is potentially available. Although uncommon, regulators need to be ready on sentence to meet submissions for such orders.

Applicable provisions

Under s. 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court that finds a person guilty of an offence may, without proceeding to conviction, make an order directing that the relevant charge be dismissed. Section 10(3) lists four factors that the court must consider:

1. character, antecedents, age and health and mental condition of an offender;
2. the trivial nature of the offence;
3. any extenuating circumstances; and
4. any other matter that the court thinks proper to consider.

Section 10(1)(a) orders are also available to corporate offenders (applying s. 21, Interpretation Act 1987).

Relevant case law

In the recent decision of Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 5) [2020] NSWLEC 65, the defendant was found guilty of three offences against s. 125(1) of the Environmental Planning and Assessment Act 1979 ("EPA Act") and pleaded guilty to a further charge. The defendant made an application for a s. 10(1)(a) order and sought Pepper J's early ruling.

In dismissing the application, Pepper J found that an order under s. 10(1) is "usually rare" in the case of environmental offences: [35]. Where these are strict liability offences, such orders are considered appropriate in only limited circumstances: [37]-[38].  This is to emphasise general deterrence and "give effect to" the relevant regulatory regime (eg. Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [70]-[71]).

Section 10(1)(a) orders generally, although not always, apply to offences of a trivial nature (Leda at [34]). Whether an offence is considered trivial will turn on the facts that give rise to the offence (Walden v Hensler (1987) 163 CLR 561 at [25]). In the environmental context, if an offence is a technical, unintended or minor breach of the legislation it may be considered trivial (Penrith City Council v Re-Gen Industries Pty Ltd (2000) 107 GERA 331 at [30]-[31]).

The subjective circumstances of the offender may also be influential in the environmental context, even if the offence is not considered trivial.  That was the case in Secretary, Department of Planning and Environment v T W Perram & Partners Pty Limited (2017) LGERA 169. The defendant pleaded guilty to a strict liability offence under the EPA Act. The defendant had received, but failed to disclose, donations from persons with a financial interest in an application to modify an approval for a major project. Justice Pain dismissed the charge under s. 10(1)(a), finding that:

• significant subjective factors were demonstrated, including an early guilty plea, provision of co-operation, pre-trial disclosures, no prior convictions, and genuine contrition and remorse: [45]-[48];
• the principal of the defendant was "elderly and transitioning to retirement after many decades in the environmental consultancy industry", and also "impressed the Court as a candid witness who took care in his professional activities": [50]-[51]; and
• the offence, although not trivial, "arose from a mistake and no more": [51].

Implications

Although uncommon, s. 10(1)(a) orders are available for environmental offences, especially where the defendant can show the offending is "trivial" or can mount a strong subjective case.

Regulators should be mindful of the availability of s. 10(1)(a) orders and be ready to respond to defence submissions seeking such orders. This may be by preparing evidence on how the offence causes harm to the regulatory regime and submissions in favour of general deterrence.

Contacts

Sarah-jane Morris, Director
Regulatory & Environment practice group
Sarah-jane.Morris@cso.nsw.gov.au
02 9497 9390

Josh Pallas, Senior Solicitor
Regulatory & Environment practice group
josh.pallas@cso.nsw.gov.au
02 9474 9445

Rosalind Acland, Solicitor
Regulatory & Environment practice group
rosalind.acland@cso.nsw.gov.au
02 9474 9298

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