(c) at State level, statutes such as the National Parks and Wildlife Act 1974 (NSW), the former Endangered Fauna (Interim Protection) Act 1991 (NSW) and the current TSC Act and policies such as the New South Wales Biodiversity Strategy.
147 Critical to the conservation of biological diversity and ecological integrity is the conservation of threatened species, populations and ecological communities. That is shown by the objects of the TSC Act quoted earlier in the judgment. The statutory scheme introduced by the TSC Act is designed to ensure the conservation of threatened species, populations and ecological communities. Of utmost importance is the prohibition on damaging threatened species, populations or ecological communities without prior environmental impact assessment and approval by a responsible regulatory authority: see judgment above (paragraphs 64-71).
148 The offence provisions, including s 118A(2) of the NPW Act, are themselves designed to warn potential offenders of the seriousness with which the community views conduct which contravenes these requirements to protect threatened species, populations and ecological communities, to deter persons from such conduct and to punish those who nevertheless persist in engaging in such conduct.
149 The Court must be alive to considerations of this kind and, by the sentence it passes, show its abhorrence of crimes against the environment and significant components of it such as threatened species, populations and ecological communities.
150 The level of sentencing sends out messages about attitudes to crimes. In the United Kingdom, a sub-committee of the House of Commons Environment Audit Committee, studied and reported on Environmental Crime and the Courts (Stationery Office, London, 2004). One of the principal concerns of the Committee was "the fact that the level of sentences given in courts - principally magistrates' courts - for environmental crimes was too low for them to be effective either as punishment or as a deterrent": para 15.
151 The Environmental Justice Project conducted a similar review, being particularly concerned to assess the extent to which the United Kingdom's civil and criminal law systems satisfied the requirements of the Aarhus Convention (the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters). Hatton, Castle & Day summarised the findings and recommendations of the Environmental Justice Project: C Hatton, P Castle and M Day, "The environment and the law does our legal system deliver access to justice? A review" (2004) 6(4) Environmental Law Review 240. They found that fines for environmental offices are "too low", both to act as an appropriate deterrent to offenders and to be proportionate to the environmental impact caused by the offence: supra, pp 259-261. In these circumstances, Hatton, Castle and Day concluded:
"It is clear that many determined and persistent offenders do not respond to fines. As such, the criminal system risks failing to meet the basic requirements of the Aarhus Convention, in that the penalties imposed are neither 'adequate' nor 'effective' to address environmental and wildlife crime": supra , p 264.
152 They recommended that in sentencing for environmental crime courts should place particular emphasis on "the environmental impact of an offence and the level of fine should reflect any economic gain arising from the offence": supra, p 264.
153 Watson also reviewed sentences of courts for environmental crime: M Watson, "Environmental Offences: the Reality of Environmental Crime" (2005) 7(3) Environmental Law Review 190. He referred to sentences for wildlife crime, including damaging roosts for bats, and stated that:
"Property developers are obliged to protect or relocate the habitats of endangered species. It is generally easier - and much less expensive - to destroy them": supra at 198.
154 Watson continued that:
"Sentences tend to be lenient. This discourages future prosecutions. Environmental offenders can perhaps be forgiven that 'crime pays'. The 'economic calculus' must change": supra , p 199
155 In conclusion, Watson stated:
"But environmental crime will remain profitable until the financial costs to offenders outweigh the likely gains. The anticipated net benefit of environmental crime to offenders much become negative…Degrading the environment must become economically irrational: supra , pp 199, 200.
156 The importance of the Court bearing in mind the economic realities of development of or that affects the environment and the need for the Court to impose a sentence which changes the "economic calculus" for those contemplating such development, was emphasised by Mahoney JA in Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 359-360. Although said in the context of pollution, the dicta is of general relevance to environmental offences generally:
"In determining the fine appropriate to an offence of pollution, two things are to be borne in mind: the seriousness with which the community regards pollution of this kind; and the purposes sought to be achieved by the imposition of fines in cases such as these.
The community has adopted a stern policy against pollution. The legislative scheme requires that proper, and strict, precautions be taken by those whose activities may cause proscribed pollution. The quantum of the fines which may be imposed evidences this: for the present offence, a maximum fine of $125,000 was available. The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.
That leads to the second matter. The argument in this appeal has at least suggested that the Court, in assessing the penalty, should take into account the serious effect which fines of this order of severity will have upon the operations of those engaged in the cotton growing industry. I do not doubt that the Court must take into account the impact of a particular fine upon a particular defendant. But that consideration does not stand alone.
The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure that pollution does not occur. Experience has shown that it is not enough merely to take care: accidents will happen. The legislation envisages that in many cases care must be supplemented by positive precautions; business must be arranged and precautions taken so as to ensure that pollution will not occur.
Precautions may be costly. The cost of precautions to avoid pollution will no doubt become accepted, in due course, as an ordinary cost of operating in an industry where, absent precautions, pollution may occur. The legislature was no doubt conscious of the effect which increased costs may have in a market; what I have said is expressed in general terms and is, of course, subject to the circumstances of each case. But I believe legislation of this kind contemplates that, in general, the cost of preventing pollution will be absorbed into the costing of the relevant industries and in that way will be borne by the community or by that part of it which uses the product which the industry produces. In assessing the quantum of a fine considerations of this kind are to be taken into account. The fine should be such as will make it worthwhile that the cost of precautions be undertaken. As the learned judge indicated, in the present case, in order to prevent pollution of the river, it was necessary, inter alia, that the company delay spraying until the conditions were appropriate for it. No doubt that delay costs money. Ordinarily, the fine to be imposed should be such as to make it worthwhile that costs of this kind be incurred.
I do not mean by this that the legislature saw the legislation as providing, by payment of a fine, a licence to pollute. In the end, the object of the legislation is to prevent pollution and to do this, inter alia, by the deterrent effect of a substantial fine and by, in consequence, persuading the industries concerned to adopt preventive measures. In addressing the fine in an individual case, it is proper to bear in mind the economic realities upon which such legislation is based".
157 By a court taking such factors into account, it promotes the achievement of ecologically sustainable development. The fourth pillar of ecologically sustainable development is the internalisation of external environmental costs. Ecologically sustainable development requires accounting for the short term and long term, external environmental impacts of development. One way in which of doing so is by adoption of the user pays or polluter pays principle: J Moffet and F Bregha, "The Role of Law Reform in the Promotion of Sustainable Development", (1997) 6 Journal of Environmental Law and Practice 1 at 7.
158 Retribution for the harm which has been done by an offender will also be an important aspect of sentencing in environmental offences. The community must be satisfied that the offender is given his just desserts. Public confidence in the administration of justice depends, at least, to some extent, on the courts not failing to have regard to the community's persistently punitive attitude towards the sentencing of offenders: Ryan v R (2001) 206 CLR 267 at 282-283 [46].
The purpose of sentencing hearing
159 The plea of guilty admits only the elements of the offence: R v O'Neill [1979] 2 NSWLR 582 at 588. It does not admit any matter of aggravation or deny any matter of mitigation not covered by the offence: R v Jobson [1989] 2 QdR 464 and Law v Deed [1970] SASR 374 and R v Olbrich (1999) 199 CLR 270 at 281 and 291-292.
160 In order to determine the appropriate sentence, the Court must determine the facts for the purpose of sentencing, the criminality and culpability of the defendant and the nature and characteristics of the defendant.
Approach to sentencing
161 A basic principle of sentencing law is that the sentence must reflect both the objective circumstances of the offence and the personal or subjective circumstances of the defendant: Veen v R (No 1) (1979) 143 CLR 458 at 490 and Veen v R (No 2) (1988) 164 CLR 465 at 472. This is the principle of proportionality.
Objective circumstances