Environmental Crimes: Increasing Sentencing Certainty
Following a major collaboration between the Land and Environment Court and the Judicial Commission of New South Wales, judges can now access the Court’s sentencing statistics for criminal matters on the Judicial Information Research System (JIRS). This will increase the information available to judges making sentencing decisions in cases of environmental crimes, such as oil pollution, and should increase consistency in sentencing.
The publication of sentencing statistics is an important element of upholding public confidence in the criminal justice system. The basic concept is that the same offence in the same circumstance should receive the same treatment. Making information about the ranges of sentences handed down for particular offences, and the factors which underpinned them, is essential to allowing judges to apply the law consistently and predictably.
The JIRS system allows for significant tailoring to the circumstances of particular environmental crimes. In addition to the sentences themselves, the system includes seventeen “sentencing variables” - subjective and objective characteristics of the offence and the offender. This allows judges, when sentencing a defendant, to search for previous cases featuring similar circumstances with a high degree of specificity. For example, a judge can search for penalties levied in a case of accidental oil pollution with foreseeable harm to the environment but only low actual harm, when the defendant was a corporation rather than an individual which had a prior record but which cooperated, expressed remorse and made an early guilty plea. The system will then show sentences in a graphical format, expressed as dollar amounts or as a percentage of the maximum fine, allowing judges to see how common sentences at particular levels are and to consider what other factors may be relevant. JIRS also allows related aspects of sentencing, such as costs orders and reimbursement of remediation expenses, to be accessed easily.
The use of JIRS in assessing sentences for environmental criminal offences should result in greater transparency and consistency in sentencing. At the appellate level, it may also assist courts in determining whether a sentence is disproportionate to the crime committed. Most importantly, defendants in New South Wales environmental prosecutions, such as oil pollution offences, can expect greater certainty in their likely penalties.
Written by Matthew Burston, Solicitor
