71 In the context of strict liability pollution of the environment offences, it has been said that it is a rare case when a dismissal under s 10 is seen as appropriate: Thorneloe v Filipowski (2001) 52 NSWLR 60 (CCA) at [165] - [169] per Spigelman CJ. Nevertheless, in that case, the Court of Appeal made an order under s 10(1)(a) directing that the charge be dismissed in circumstances where there was nothing further that the master of a vessel, a first offender, could have done to avoid the comparatively minor oil pollution the subject of a strict liability offence to which he had pleaded guilty: at [214]. Spigelman CJ held at [178] and [184]:
178 It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act , in the context of a strict liability offence, to consider what the applicant for the benefit of s 10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeat offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight.
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184 The circumstances, particularly the unblemished record of the appellant and the small size of the discharge indicate that this is an appropriate case for the exercise of the discretion. Consideration of what the master could have done to avert the discharge supports this conclusion.
72 The prosecutor opposes an order under s 10(1)(b), essentially because the offence was not of a trivial nature and the defendant failed to take the steps of asking Mrs Tzannes whether there was a council consent to clearing work and, if so, asking to see it. While conceding that the offence was not of a trivial nature, the defendant points out that that is not necessarily dispositive of its application. The defendant submits (in terms of s 10(2)) that in all the circumstances the Court should be satisfied that it is inexpedient to inflict any punishment (other than nominal punishment) or that it is expedient to release the defendant on a good behaviour bond.
73 It is necessary to take into account all the criteria in s 10(3). The defendant is an honest person of unblemished character who has spent his life in voluntary and hazardous community service. He is a first offender. He is 39 years of age. There is nothing about his health or mental condition which is of relevance. Although the offence is not of a trivial nature, there are extenuating circumstances in which the offence was committed and other circumstances to which I think it is proper to have regard. First, he genuinely and not irrationally believed from what Mrs Tzannes told him that she had obtained any necessary council approval for the clearing work: see [53] - [54] above. Secondly, he carried out the work, in which he was inexperienced, not as part of a business but reluctantly at the request of Mrs Tzannes because of a family connection. Thirdly, the mitigating factors referred to at [58] above. Fourthly, although there was environmental harm, the site appears to be revegetating satisfactorily and the harm was not, of course, in the category of harm that may kill the earth such as in an oil spill. Fifthly, the offence is at the low end of criminality. Sixthly, his limited means: see [59] - [61] above.
74 On the other hand, the defendant knew that the council officers had not expressly approved clearing of trees and vegetation or the use of a bulldozer to clean up. In those circumstances it would have been prudent for the defendant to have checked, or to have requested Ms Tzannes to check, with the council whether the council approved the cleaning up being done by use of a bulldozer, which would necessitate clearance of trees and vegetation. As the defendant failed to do so, in my opinion considerations of general deterrence make it appropriate, in the circumstances of this case, to record a conviction in order to educate contractors and others who carry out development to take prudent steps to ensure that necessary approvals have been obtained.