MONOGRAPH 40 volume 1

153 Research monograph 40 3. Discussion Originally, the LEC was required to specify the quantum of the costs at time of sentence in accordance with s 52 of the LEC Act as it applied then. This requirement was removed by the Courts Legislation Amendment Act 1997 and replaced with a costs assessment process. 854 The effect on sentencing practices in the LEC was not given appropriate consideration by the Parliament. The change effectively removed costs as a known fiscal component in the sentencing process which compromised the LEC’s application of sentencing principles, particularly in relation to proportionate sentencing and the offender’s capacity to pay. A lack of transparency in the setting of monetary orders beyond fines was one unintended consequence of this change. The current arrangements — of not requiring all costs to be quantified and disclosed — hinders the court’s ability to achieve what has been described as “individualised justice” in sentencing. 855 This is because a substantial and crucial element of the pecuniary punishment is not known by the LEC in a large proportion of cases. The change adversely affected the court’s ability to compare sentences imposed in “like” cases where the costs figure was known in some instances but unknown in others. Without factoring costs into the equation, the imposition of what may be perceived as “low” level fines may give the public and legal commentators a false impression of how the LEC punishes environmental offenders. Academic studies in the past have focused predominantly on the quantum of fines imposed by the LEC and the disparity between fine amounts and the available maximum penalties. 856 It is imperative to consider costs in the sentencing result in order to give a more accurate picture of how environmental offenders are, in fact, punished. This is highly desirable for achieving general deterrence and denunciation 857 and to broadcast to the public and “like-minded individuals” the economic consequences of environmental offending. This approach accords with the statement made by Preston CJ of LEC, in penalising a persistent and recalcitrant waste offender, that “the sentence of the court needs to be of such magnitude as to change the economic calculus of persons in determining whether to comply with or contravene environmental laws”. 858 The quantum of all costs orders, as well as the fine amount, needs to be disclosed in each LEC judgment. Without this, and on the basis of the fine alone, the court may be unfairly criticised for being too lenient on environmental offenders. Until such time as all costs to be paid by the offender are quantified and available at the time of the determination of the sentence, the LEC risks being exposed to unwarranted criticism for perceived leniency. This study suggests the review and reform of the laws relating to costs orders in the LEC will lead to greater transparency and consistency in sentencing: an outcome the court, the Parliament and the public will appreciate and welcome. This could be accompanied by a much needed review of criminal liability in this area of the law. 854 See general discussion at [1.3.2]. 855 Elias v The Queen (2013) 248 CLR 483 at [27]; R v Whyte (2002) 55 NSWLR 252 per Spigelman CJ at [147]. 856 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 81–3; M Hain and C Cocklin, “The effectiveness of the courts in achieving the goals of environment protection legislation” (2001) 18 EPLJ 319 at 332; and, M Newman, “Evaluating the EPA’s performance in pollution regulation and management against its registered objectives” at www.nela.org.au/NELA/Documents/ Evaluating_the_EPAs_performance_Max_Newman.pdf, accessed 16 May 2017. Newman’s article relied upon Poisel’s analysis and stated: low fines that tend to be imposed by the courts limit their deterrent effect for pollution offences, and the payment of fines to the NSW Treasury (rather than a fund dedicated to environmental matters) fails to ensure any remedying of the environmental damage caused. 857 CSP Act , s 3A(b), (f). 858 Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 per Preston CJ of the LEC at [152].