MONOGRAPH 40 volume 1

139 Research monograph 40 3. Discussion 3. Discussion This study has sought to analyse sentencing in the LEC, initially with reference to quantitative materials with respect to penalties and then more detailed case-by-case qualitative information. The investigation revealed that sentencing in the LEC is complex and that, in any given case, there is an interaction between conventional sentencing principles and a requirement to compensate the prosecution for its legal and other professional costs. The degree to which costs have a role in the sentencing decision is unique to the LEC. 3.1 A necessary departure from a conventional sentencing analysis A conventional sentencing analysis generally focuses on the penalties imposed by a court exercising criminal jurisdiction, including the frequency, distribution and quantum of penalties imposed. The Judicial Commission of NSW has a rich history, going back almost three decades, of conducting conventional sentencing analyses on a diverse range of State and Commonwealth criminal offences dealt with by courts. 736 A focus of many of these studies was consistency of punishment and the application of well-established sentencing principles. In the LEC, as is the case in other NSW courts with summary jurisdiction, fines are by far the most frequently imposed penalty. This would seemingly make the penalties imposed by the LEC amenable to a conventional sentencing analysis. Additional Orders are also commonly imposed by the LEC. These regularly take the form of a monetary payment to the Environmental Trust or other government body with the statutory power “to make good” any environmental damage resulting from the offender’s criminal conduct. 737 Additional Orders are routinely made “in lieu of the imposition of a fine”. 738 Unfortunately, a conventional approach to the sentencing results of the LEC, which concentrates primarily on fine amounts and the dollar amount of Additional Orders imposed, would be grossly deficient and, in all likelihood, highly misleading. This would hold even if there was a direct relationship between the quantum of the pecuniary penalty and the objective and subjective features of the case. 739 This is because of the essentially civil law method the jurisdiction deals with the prosecution’s legal and investigative costs. 740 Costs ordinarily follow the event of proof of the charge. The long-established common law rule that the Crown neither receives nor pays costs, in criminal proceedings, does not apply. Where an offence is proved, the costs are an important part of the criminal proceedings and result in a financial liability borne by the convicted offender in addition to any fine or other pecuniary penalty. 741 It is self-evident that the payment of professional costs substantially adds to the monetary punishment that the offender suffers as a result of being found guilty of an environmental crime. 742 736 For example, P Mizzi, Z Baghizadeh and H Donnelly, Sentencing Commonwealth drug offenders , Research Monograph No 38, 2014; P Poletti and G Brignell, Sentencing for common offences in the NSW Children’s Court: 2010 , Research Monograph No 36, 2012; P Mizzi, T Gotzis and P Poletti, Sentencing offenders convicted of child pornography and child abuse material offences , Research Monograph No 34, 2010; L Barnes and P Poletti, Sentencing robbery offenders since the Henry guideline judgment , Research Monograph No 30, 2007. 737 Generally, the estimated costs to the offender of carrying out such work is recorded in the judgment. 738 An order for such a payment may be made in lieu of the imposition of a fine, as held by Preston CJ of the LEC in EPA v Austar Coal Mine Pty Ltd [2011] NSWLEC 252 at [48]: “The orders that are set out in Pt 8.3 of the Protection of the Environment Operations Act , which include the orders under s 250, may be made by the Court regardless of whether any penalty is imposed or other action taken in relation to the offence: see s 244(2) and (3) Protection of the Environment Operations Act ”. Also, see EPA v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 per Craig J at [148]. 739 The Queen v Kilic (2016) 91 ALJR 131 at [18]–[19]. The High Court said that a court is bound to consider where the facts of the particular offence and offender lie on the spectrum from most to least serious. 740 Latoudis v Casey (1990) 170 CLR 534. Costs follow the event on proof of the charge. 741 EPA v Barnes [2006] NSWCCA 246 at [78] and [88]. 742 The prosecution’s legal costs and any expenses incurred in investigating the circumstances of the offence, including harm to the environment, represent two major components of professional costs. As defined in s 117(3) of the CP Act , “professional costs” means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court.