MONOGRAPH 40 volume 1

142 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW 3.2 Key findings on costs The following lists the key findings from this study with regard to costs. • Costs are not infrequently the largest component of the total pecuniary punishment for environmental offenders. Costs can comprise up to 70% or even 80% of the total monetary impost on an environmental offender. For a single pollute waters offence which attracted a fine and prosecutor’s costs were known, 757 costs averaged 41% of the total amount ordered to be paid by the offender. Costs were a slightly larger share of the total pecuniary amount for native vegetation (43.5%) and a much larger share for waste offences (70%). For a single environmental planning offence under the EPA Act , costs constituted a large portion of the total monetary punishment, on average over 54% for a s 125 offence, and over 65% where such an offence involved a violation of a TPO. • Total pecuniary costs ranged to a high of over $438,000 for a single pollute waters offence which attracted a fine, 758 and a high of more than $344,000 where the pollute waters offence was penalised by way of an Additional Order. 759 In these particular LEC cases, the cost of the prosecution constituted 36% and 81%, respectively, of the total pecuniary punishment. • For a single s 120 pollute waters offence under the current version of the POEO Act it was found that the average fine was $83,346 where costs were known at time of sentence, but almost half that, at $43,333, where costs were unknown . Under earlier sentencing regimes, fines for a single pollute waters offence also appeared to have been conservatively set by the court where costs were not quantified at time of sentence. For example, under the CW Act (rep), the average fine for a s 16 pollute waters offence where costs were known was just over $17,000, but where costs were unknown the average fine was only $10,833. Similarly, under the provisions of its immediate statutory successor (the POEO Act with lower than current maximum penalties), the average fine for a single pollute waters offence was $25,190 where costs were quantified but 12% lower where costs were not known at sentence. • It is not uncommon for the LEC to indicate in the judgment that it decided to impose a lesser fine to offset the impact of a known costs order or an unknown costs figure which is forecast to be substantial. 760 A further issue, specifically related to costs orders, is that there is no public record of whether or not the prosecutor actually recovered its costs. Costs effectively become a private matter between the parties after the LEC make final orders in the sentencing proceedings. This is problematic as the failure to pay a fine or the prosecution’s reasonable costs, where agreed or assessed, may constitute a contempt of court. There are certainly cases in this study period where the LEC is aware that an offender reappearing before the court has failed to pay court-ordered fines and costs orders for earlier convictions. 761 757 This was one of the discrete sub-categories applied to compartmentalise “like-with-like” cases. The complete set of discrete sub-categories are utilised in Cases Tables 1, 2 and 3 (in Volume 2 ). 758 EPA v CSR Building Products Ltd [2008] NSWLEC 224. Sheahan J at [60] indicated that a fine of $280,000 would be imposed. 759 EPA v Queanbeyan City Council (No 3) (2012) 225 A Crim R 113; [2012] NSWLEC 220. Pepper J indicated at [281]–[282] that the Additional Order under s 250(1)(e) was made in lieu of the imposition of a fine of $80,000. There was an attempt by the offender to stay proceedings on the basis of abuse of process which was unsuccessful ( Queanbeyan City Council v EPA [2011] NSWCCA 108). 760 Even before EPA v Barnes [2006] NSWCCA 246 per Kirby J at [78] and [88] it was acknowledged by the LEC that costs are a significant impost and act to reduce the size of the monetary penalty (eg Director-General of the Dept of Land and Water Conservation v Leverton Pastoral Co Pty Ltd [2002] NSWLEC 212 per Talbot J at [40]). 761 For example, see Bankstown City Council v Hanna [2014] NSWLEC 152 per Preston CJ of the LEC at [121]: Mr Hanna has failed to pay most of the penalty notices, fines and orders for costs and compensation imposed upon him. A schedule of enforcement orders made against Mr Hanna, tendered in evidence, revealed that he has been fined and ordered to pay amounts totalling $211,110. With the exception of eight penalty notices issued between 2007 and 2009, totalling $7,750, which Mr Hanna has paid, all other fines and amounts are unpaid and overdue. These include the aggregate of the fines and cost orders of $125,000 imposed by this Court in 2010 for his four offences against s 143(1) of the POEO Act of transporting and depositing waste unlawfully.