MONOGRAPH 40 volume 1

16 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW 1.3 Costs as a sentencing factor A focus throughout this study is to ascertain the role and impact of costs on the sentencing exercise. The discussion is informed by reference to the common law and the history of s 52 of the LEC Act . In 2016, Meagher JA said in DAO v R (No 3) : It is a long established common law rule that the Crown neither receives nor pays costs, particularly in criminal proceedings. 126 His Honour noted, however, that the common law rule was altered by the enactment of s 81 of the Justices Act 1902 (rep) and the Costs in Criminal Cases Act 1967. 1.3.1 Original mandatory requirement to specify costs From its establishment, the LEC has had a statutory power to order costs in criminal matters for the prosecutor or the defendant under the LEC Act . 127 Under the first enacted version of the now repealed s 52, the LEC ordered “such costs as to the Judge seem just and reasonable” (s 52(1)). Section 52(2) required the LEC to specify the amount. It provided: The amount so ordered to be paid for costs shall in all cases be specified in the conviction or order. 128 The CCA in Caltex Refining Co Pty Ltd v Maritime Services Board NSW 129 held it was permissible for the judge to direct the taxation 130 of a bill of costs by the registrar as a prelude to the making of a costs order, but the judge and no-one else would make the final order: It is not permissible for the Judge to make an unquantified order for costs, leaving it to some other or others, whether the parties by agreement or the registrar on taxation, to fix the quantum of the order. 131 Furthermore, the court held that it was imperative that: The Judge must specify the quantum of the costs order in the conviction or order. 132 1.3.2 Removal of requirement to specify costs The requirement for the LEC to specify the quantum of costs in the order (at the time of the conviction or order) in s 52 of the LEC Act was removed by the Courts Legislation Amendment Act 1997. Schedule 4[1] omitted “such costs as to the Judge seem just and reasonable” and replaced the text with: “costs of such amount as are specified in the conviction or order, or if the conviction or order so directs, as may be determined under subsection (2)”. Schedule 4[2] omitted s 52(2) and inserted a new 52(2) which provided costs “are to be determined”: (a) by agreement or (b) “if no such agreement can be reached, in accordance with the regulations”. The amendments made by the Courts Legislation Amendment Act had unintended consequences for sentencing in the LEC. Suddenly, the quantum of costs specified in the court orders were no longer part of the sentencing judgment on the public record. The penalty imposed was separated from costs orders whether it was to be later “agreed” or determined by the regulations. The previous procedure articulated by Sully J in Caltex Refining Co Pty Ltd , which had far greater transparency, no longer applied: 126 [2016] NSWCCA 282 at [1]. 127 Section 52. 128 See first enacted version of the LEC Act , s 52 at www.legislation.nsw.gov.au/acts/1979-204.pdf, accessed 16 May 2017. 129 (1995) 36 NSWLR 552. 130 “Taxation” is a term used in the law for the purposes of assessing and quantifying legal costs. 131 (1995) 36 NSWLR 552 per Sully J at 564. 132 ibid.