The sentence
(as summarised by His Honour Mr Recorder Lawrie QC who was the Judge in the
case)
The sentence in this case was very difficult partly because a process, which
usually requires 2 days, had to be accomplished in one day, which included
the fascinating but novel restorative justice exercise.
The additional novelty value from a sentence perspective is the fact that these
were pollution offences aimed at CEO's where as in conventional pollution
cases it is usually just the company who is charged and companies cannot be
sent to prison. There are pollution offences that carry prison usually with a
limit of 2 years but directors are rarely prosecuted.
What was difficult in the current case was that both men were convicted of
slightly different offences in terms of culpability. Bannerman was convicted of
ecocide covering a 6- month period. Tench was convicted of ecocide covering
only a single day although other ecocidal activity was taken into account.
However, in principle he could only be sentenced for the offence he was
convicted of and not for offences for which he could have been convicted.
Additional background material was therefore only taken into account as
aggravating material.
The sentence was based on real guidelines although guidelines were drawn
up to deal with large- scale domestic pollution incidents. However, the
principles would apply in the same way to ecocide and that is why they were
used.
The sentencing exercise goes through the following stages:
(1)Gauging seriousness
(2)Gauging culpability
(3)Balancing aggravating factors against mitigating factors
Finally, the sentence of the permanent damage done to the Boreal forest, the
creation of toxic taking ponds on vast scale, damage and destruction to
wildlife and water resource depletion was dealt with.
It was concluded that both CEOs had intended to cause this ecocide, i.e. they
were culpable for the crime, because they had failed to use the 3- year lead in
period as an opportunity to put their polluting activities in order. This was a
significant aspect of culpability and it was this very factor along with the scale
of the damage that easily put this case over the threshold for custody.
In terms of the balance between aggravating and mitigating factors,
Bannerman had embarked on a restorative justice programme and
subsequently signed a heads of agreement/action plan. This represented a
significant piece of mitigation, which counterbalanced his culpability. He was
embarked on a restorative approach to his sentence and importantly
undertaking a move away from tar sand extraction.
He could have been sent to prison but that would have undermined the
provisions/ undertakings in the action plan order, so the sentence was
deferred, which simply meant delaying the sentence to see if he is good to his
word. If he fails to show any sign of meeting the action plan by the end of 6
months he will go to prison. If he succeeds he will either get a suspended
prison sentence order or he will get a supervision order linked to the
restoration for 3 years. This means he has to prove in an annual court review
that he is keeping to the order, which was agreed by him and directed by the
court. If he fails, the court is at liberty to go back to square one and sentence
afresh for the original offence.
This was, in our judgment, the most constructive approach to sentence. It is
not a lenient sentence because it imposes obligation running for up to 5 years
with extensions. It is also the most effective sentence in terms of restoring the
damaged environment.
The other CEO, Tench, took a far more obstructive approach as he refused to
accept the jury's verdict. He had no serious mitigation to assist him beyond
the personal representations regarding his family.
His offence also crossed the custody threshold but his polluting activity was
confined to a single day as opposed to period of months. However, his
deliberate failure to use the 3- year lead in period as an opportunity to correct
polluting activities was taken into account as an additional aggravating feature
to reach beyond the single day on the count on the indictment. In the light of
his lack of remorse, there also existed a real fear for further polluting activities
on his behalf. Tench's sentence but for personal mitigation would have been 5
to 5 ½ years imprisonment.