MONOGRAPH 40 volume 1

140 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW In the LEC, it is not uncommon for the costs order not to be quantified, or for the final figure not to be available for consideration by the LEC at time of sentence. For example, in one-third of pollute waters cases examined in this study, the quantum of the costs at time of sentence was still “to be agreed or assessed”. In such cases, in order to finalise a sentence hearing, the sentencing judge must determine the appropriate level of the fine or other monetary order without any clear indication of the magnitude of such costs. At other times, the LEC will proceed to sentence on the basis that costs remain unquantified but are understood to be “substantial”. 743 This is unfortunate for a number of reasons. First, as the CCA held, costs are an integral aspect of the punishment in the LEC. 744 Costs, therefore, affect the application of the common law principle of proportionality, which operates to guard against the imposition of unduly harsh or unduly lenient sentences: There is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed. 745 As the proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the offence having regard to the objective circumstances of the offence, 746 how then can the court properly determine “a punishment that fits the crime”, when a critical part of the pecuniary punishment is unavailable at time of sentence for the court to set the appropriate fine? Secondly, costs also affect the offender’s means to pay. Section 6(a) of the Fines Act 1996 provides that in exercising its discretion “to fix the amount of any fine, the court is required to consider … such information regarding the means of the accused as is reasonably and practicably available to the court for consideration.” 747 Given that the court “is required” to consider the offender’s means to pay a fine, this is not a discretionary consideration but a mandatory one. As the High Court remarked in the sentencing appeal of Markarian v The Queen : The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. 748 It is not possible to obtain an accurate measure of the severity of the overall punishment imposed on an environmental offender until the quantum of the costs order is considered together with the fine and/or any other pecuniary penalty. Any analysis of sentences in the LEC must have regard to the costs figure as well as the quantum of any penalties imposed. This study was hampered by the fact that the quantum of costs orders was not recorded in the environmental crime sentencing database or disclosed in the LEC’s judgment. The systemic lack of information about costs makes it difficult to assess the overall severity or leniency of sentences imposed by the LEC. This, in turn, renders previous academic research on penalties imposed in the LEC of questionable value because of the erroneous approach of solely focusing on fine amounts without taking account of orders for costs. 749 Preston CJ of the LEC has described the consideration of monetary orders in determining an appropriate penalty in terms of a discretionary element: 743 For example, EPA v Environmental Treatment Solutions Pty Ltd [2015] NSWLEC 160 per Pepper J at [108]–[109]; Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271 per Pepper J at [192]; and, Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75 per Preston CJ of the LEC at [64]. 744 EPA v Barnes [2006] NSWCCA 246 at [78] and [88]. 745 R v Scott [2005] NSWCCA 152 per Howie, Grove and Barr JJ at [15]. 746 R v McNaughton at [15]; Veen v The Queen (No 2) (1988) 164 CLR 465; and, Hoare v The Queen (1989) 167 CLR 348 at 354. 747 Fines Act 1996, s 6(a). Under s 6(b), the court is required to also consider “such other matters as, in the opinion of the court, are relevant to that fixing of that amount”. Consideration of the financial circumstances of an offender may increase, rather than decrease, a fine in order for it to serve as a specific deterrent: Jahandideh v R , above n 212, at [17]. 748 (2005) 228 CLR 357 per Gleeson CJ, Gummow, Hayne and Callinan JJ at [39]. Also see J Bosland and J Gill, “The principles of open justice and the judicial duty to give public reasons” (2014) 38(2) Melbourne University Law Review 482. 749 T Poisel, “(Environmental) crime does not pay: the effectiveness of the criminal prosecutions under pollution legislation in NSW” (2013) 18 Local Government Law Journal 77 at 81–83; M Hain and C Cocklin, “The Effectiveness of the courts in achieving the goals of environment protection legislation” (2001) 18 EPLJ 319 at 332.