Regulatory & Environment Insights

PINs or summonses - is parity an issue?

(Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Salvestro [2023] NSWLEC 34)

Key points

• The issuing of a Penalty Infringement Notice (PIN) to one offender does not make that person or entity a 'co-offender' of another offender before a court for sentence.
• Regulators have flexibility to utilise a range of enforcement mechanisms against offenders who have committed like offences, without invoking the parity principle on sentence.

What is parity?

The concept of parity in sentencing law is concerned with achieving the systemic objectives of consistency and equality through avoiding unjustified disparities between sentences imposed upon different offenders involved in the same criminal conduct or enterprise.[1] Parity is underpinned by the principle that like cases should be treated alike and different cases should be treated differently: Green v The Queen (2011) 244 CLR 462 at [28].

To avoid grievances between co-offenders, judicial officers should ensure that related offenders are sentenced by the same sentencing judge at the same time.[2]

Issues of parity usually arise when there are multiple 'offenders' the subject of a factual scenario which comes before a court in criminal law proceedings. In this sense, the term 'co-offenders' does not refer only to people who have committed the same crime, but also includes persons who are 'co-offenders' by virtue of having engaged in the same criminal conduct or enterprise.[3]

Recent example of parity in the regulatory context

In Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Salvestro, Dean Troy Salvestro pleaded guilty to five offences in breach of ss. 91G(2) and 60C(2) of the Water Management Act 2000 in the NSW Land and Environment Court. Four of the breaches involved contravening bore extraction limits and the fifth breach concerned taking water not in accordance with an access licence allocation.[4]

Mr Salvestro was summonsed to attend court. However, other persons and entities that held the approval for the bore were instead issued with cautions and PINS. Mr Salvestro submitted that the parity principle should apply to any sentence imposed on him by the Court because those that held the approval for the bore were involved in the same criminal conduct the subject of some of Mr Salvestro’s charges.[5]

The Court rejected this submission on the basis that:[6]

1. There were no 'co-offenders' involved in the relevant offending as none of the other persons and entities were convicted and sentenced. The Court held that a PIN is neither a criminal conviction nor a sentence, but rather a civil penalty;
2. No further information or evidence was provided in relation to the offending conduct engaged in by the other persons and entities which would enable the Court to investigate why the regulator determined only to issue PINs or cautions to those entities and not to Mr Salvestro; and
3. It was Mr Salvestro, and not the other persons and entities, who used the water that was unlawfully extracted.

The Court came to a similar conclusion in the more recent decision of Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Commins [2023] NSWLEC 43.

Implications for regulators

The Court’s approach to parity here, in circumstances where the regulator has considered that both PINs and prosecutions are appropriate enforcement mechanisms for certain offences committed contrary to provisions of the Water Management Act 2000, illustrates that a regulator’s approach taken in respect of one offender does not prevent a stricter enforcement approach from being taken in respect of another offender. Such offenders are not considered 'co-offenders'. There exists flexibility for a regulator in deciding how to respond to instances of offending without concern, depending on the particular circumstances of the alleged offending conduct, as to the impact it may later have on related sentencing exercises before a Court.  

For more information on the application of the parity principle, see the previous issue of Regulatory & Environment Insights.

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[1] JudCom Sentencing Bench Book, [10-801].

[2] JudCom Sentencing Bench Book, [10-801] and [10-805].

[3] JudCom Sentencing Bench Book, [10-810].

[4] Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Salvestro [2023] NSWLEC 34 ('Salvestro'), [1]-[3].

[5] Salvestro, [165].

[6] Salvestro, [170].

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Contact

Claudia Pendlebury, Director

Email: claudia.pendlebury@cso.nsw.gov.au
Ph: 02 9474 9406

Amelia Cook, Senior Solicitor

Email: amelia.cook@cso.nsw.gov.au
Ph: 02 9474 9915

Faith Sheridan, Intern

Email: faith.sheridan@cso.nsw.gov.au
Ph: 02 9474 9430

The CSO's Regulatory & Environment practice group specialises in advising and representing agencies in relation to regulatory compliance and prosecutions, statutory interpretation advice in the environment and natural resources context, as well as criminal law, evidence and procedure.