MONOGRAPH 40 volume 1

141 Research monograph 40 3. Discussion The fine may be only part of the penalty imposed on an offender. Consideration can also be given to other monetary amounts the offender may be ordered to pay, including the prosecutor’s legal costs of the proceedings and investigation costs. 750 While it may continue to exist as a sentencing consideration in the LEC, the CCA has held that costs orders made to compensate the prosecuting agency for its legal and other expenses are a significant component of the punishment. 751 This decision has been applied extensively by the LEC in recognition that costs “should be factored into the determination of the appropriate penalty” and should be considered “as a factor that acts to reduce the penalty”. 752 Therefore, the LEC would need to give good reasons for not downwardly adjusting a monetary penalty to offset the punitive effect of a costs order. Failure to do so, in fact, may constitute an error at law. 753 In order to more fully consider the pervasive influence of costs on sentences made in the LEC, this study partitioned and examined separately cases where the costs figure was known, from cases where the costs figure was not known. Further stratification of cases in terms of “like-with-like” offences allowed more nuanced comparisons of the monetary penalties and costs orders imposed based on this primary division. Clear patterns in sentencing were observed with regard to costs, which were not only consistent across different environmental offence categories but across different sentencing regimes. Even when the cases are delineated according to defined criteria, the sentencing result can only be truly understood by a close analysis of the facts of the case. For example, particular sentencing results may seem enigmatic unless costs orders and the reasons for the final quantum of monetary penalties are fully exposed. The definitive example is the strikingly different fines and costs orders imposed on dual corporate defendants in the associated cases of EPA v Cleary Bros (Bombo) Pty Ltd 754 (sentenced by Lloyd J) and EPA v Waste Recycling and Processing Corp 755 (sentenced by Preston CJ of the LEC some three weeks earlier). Lloyd J was careful to make clear his Honour’s justification for imposing a much lower fine and a vastly different costs order compared to those imposed by Preston CJ of the LEC: In the associated case of Waste Recycling and Processing Corporation , Preston CJ [of the LEC] imposed a penalty of $75,000, ordered the defendant to pay the prosecutor’s costs of $39,000 and the prosecutor’s investigative costs and expenses of $7,240, and ordered the defendant to comply with a publication order. This may be contrasted with the present case involving precisely the same offence with precisely the same environmental impact, in which I impose a penalty of $16,000, an order that the defendant pay the prosecutor’s costs of $104,000 and the prosecutor’s investigative costs and expenses of $7,240, and in which I decline to make a publication order. This may at first sight be seen to be somewhat surprising, but it demonstrates that for precisely the same offence there can be vastly different degrees of culpability and vastly different mitigating circumstances. It also demonstrates the truth of the observations made in the Court of Criminal Appeal in Cabonne Shire Council v Environment Protection Authority at [35] that “ because the penalty will turn on the facts of the individual case comparison with other decisions will be of limited utility ”; and the further observations, as noted in par [159] above, that “ indiscriminate reference to other cases is of little utility and should be discouraged. Even discriminating reference is likely to be of no utility because the facts in cases such as the present will almost always be peculiar to the individual case. ” 756 750 EPA v Causmag Ore Co Pty Ltd [2015] NSWLEC 58 at [123]. 751 EPA v Barnes [2006] NSWCCA 246 at [78] and [88]. 752 EPA v Environmental Treatment Solutions Pty Ltd [2015] NSWLEC 160 per Pepper J at [108]; Chief Executive, Office of Environment and Heritage v Fish (No 2) [2014] NSWLEC 67 Pain J at [48]. See Appendix D for a list of LEC cases applying the costs principles espoused in Barnes . 753 In a number of cases before the intermediate appellate court, the grounds of appeal were the perceived excessiveness or unreasonableness of the financial imposition on the offender. See Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 and the defence submissions in EPA v Barnes [2006] NSWCCA 246 per Pain J at [62]–[63]. 754 [2007] NSWLEC 466. 755 (2006) 148 LGERA 299; [2006] NSWLEC 419. 756 [2007] NSWLEC 466 at [175]. Original emphasis retained.