MONOGRAPH 40 volume 1

2 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW This study will illustrate, however, that there are also aspects of the sentencing process that can be improved, particularly in relation to costs. The prosecutor, following the finding of guilt, requests the LEC to make an order that the offender pay its costs. 6 For the purposes of sentencing, the prosecutor’s costs are an important aspect of the punishment and can be taken into account in considering the appropriate penalty. 7 This approach to costs in the sentencing exercise sets the LEC apart from other courts exercising criminal jurisdiction. A focus and theme throughout this study is to inquire how this unique state of affairs impacts upon the sentencing process of the LEC. A conventional analysis of sentencing usually involves focusing purely upon the penalties imposed by a court. However, in the case of the LEC, this approach would be myopic and deficient because fines are by far the most common penalty and costs are an important part of the criminal proceedings and result in an additional financial liability to be borne by the environmental offender. 8 In order to give an accurate picture of the severity of the overall punishment it has been necessary to have regard to the costs figure as well as the sentence(s) imposed. This study was hampered by the fact that often the costs figure is not known at the time of sentencing, 9 or the court relies upon an estimate of the professional costs 10 given by the prosecution. The systemic lack of information about costs makes it difficult to assess the overall severity or leniency of sentences imposed by the LEC. This study settles on a method which attempts to gauge the role of costs by separating cases where the costs figure is known, from cases where it is not known. It should be noted, that there is no public record of whether the prosecutor actually receives its costs as costs effectively become a private matter between the parties after the sentencing proceedings. A strong argument can be made to further increase the transparency of the sentencing process in the LEC by ensuring that all monetary costs to be paid by the offender are known to the court at the time of sentencing and are recorded as part of the judgment. This may involve a change in sentencing practices. If the total monetary amount is made known, this would inform the offender, like-minded individuals and the public of the actual economic deterrent of criminal proceedings and the consequent sanctions. As the High Court remarked in the sentencing appeal of Markarian v The Queen : 11 The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. One of the key findings of this study is that Tier 1 offences under the Protection of the Environment Operations Act 1997 ( POEO Act ) are very rarely charged. The authors identified only nine Tier 1 offences over the 15-year study period. The POEO Act was enacted nearly 20 years ago. 12 It is ripe for review, at least, to ascertain why Tier 1 offences are charged so rarely and why prosecutors also do not plead alternative charges — that is, charge a Tier 1 offence and a Tier 2 offence as an alternative included offence. This is standard practice for other criminal offences. 13 Perhaps consideration could be given to an alternative verdict provision for Tier 1 and 2 offences similar to s 61Q of the Crimes Act 1900. 6 Land and Environment Court Act 1979 ( LEC Act ), s 41 provides that Ch 4, Pt 5 of the Criminal Procedure Act 1986 ( CP Act ) applies to proceedings in Class 5 of the court’s jurisdiction. Sections 170(3)(c), 257B and 257G of the CP Act provide a statutory power for the LEC to make an order for prosecution costs. Previously, the power existed under s 52 of the LEC Act . See Leeming JA’s historical discussion in EPA v Truegrain Pty Ltd (2013) 85 NSWLR 125 at [81]–[84]. 7 Harris v Harrison (2014) 86 NSWLR 422 ( Harris ) per Simpson J at [100]. 8 A typical costs order is: “The defendant is ordered to pay the reasonable legal costs and disbursements of the prosecutor as agreed or assessed.” See for example Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 per Button J at [96]. 9 For example, considering the 41 pollute waters cases dealt with by the LEC under the current sentencing regime, six (almost 15%) did not record a figure or estimate of the prosecutor’s costs. 10 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. 11 (2005) 228 CLR 357 per Gleeson CJ, Gummow, Hayne and Callinan JJ at [39]. 12 The Protection of the Environment Operations Act 1997 ( POEO Act ) was proclaimed and became operational on 1 July 1999 (GG No 178 of 1998, p 9952). 13 See generally James v The Queen (2014) 253 CLR 475 at [14] citing Brown v The King (1913) 17 CLR 570 per Isaacs and Powers JJ at 591. At common law the jury could not convict of a misdemeanour if the indictment charged a felony, but was at liberty to convict of a less aggravated felony (or misdemeanour if the indictment charged a misdemeanour) provided the words of the indictment covered the lesser offence.