The law of proportionality and the sentencing of environmental crimes in the Land and Environment Court of New South Wales
thesisposted on 29.03.2022, 00:16 by Andrew Burke
Proportionality in criminal sentencing is a deceptively simple concept, so deeply embedded within modern notions of justice that it can be seen as mere common sense: the punishment should fit the crime. The superficial simplicity of the concept masks the complex definitional, statutory and practical challenges of implementing proportionate sentencing in a specialist environmental court. This thesis analyses criminal sentencing carried out by the Land and Environment Court of New South Wales ("LEC") from 2004-2013. A critical examination of written sentence judgments from this period forms the basis of this study. A new test for proportionality in the sentencing of environmental crimes is presented, created by synthesising the common law definitions of proportionality developed by the High Court of Australia, the Supreme Court of New South Wales and the LEC itself. This thesis then applies that test to evaluate the proportionality of the penalties imposed for four of the most frequently occurring offence types over the ten-year period. The findings reveal that, whilst sentencing is reasonably proportionate in the majority of cases, there are numerous and diverse causes of disproportionality in the LEC's sentencing. Further, the inherent characteristics of environmental crimes can lead to difficulties with evaluating the harm to the victim of the crime, the environment, thereby jeopardising proportionality. On the basis of these findings the thesis concludes by outlining a range of possible reforms to environmental statutes and LEC practice to address the causes of disproportionality in the LEC's sentencing of environmental crimes.