MONOGRAPH 40 volume 1

17 Research monograph 40 1. Introduction to take the present matter as an example, [the sentencing judge] could have found the offence proved; have heard argument as to penalty; sought the assistance of a taxation by the Registrar, or received properly qualified expert evidence as to what costs order would be reasonable; have heard argument upon the form of a final costs order; and then reached a final decision as to penalty and costs, expressing that decision in the form of orders of conviction, of penalty by way of fine, and for the payment by the appellant to the respondent of a quantified sum by way of costs. 133 Section 52 was further amended a year later by the Courts Legislation Amendment Act 1998 to make clear that in determining costs the regulations made under s 52 could adopt provisions of the Legal Profession Act 1987. 1.3.3 The current law on costs How then are costs relevant to the determination of an appropriate sentence in the LEC? First, it is important to note that the law in this area changed during the period covered by this study. Secondly, there was a level of uncertainty regarding whether or not the LEC could take into account professional costs in determining the sentence. It is now established and accepted that costs are “an important aspect of the punishment” 134 or, as put more directly by the CCA in Harris , “in considering the appropriate penalty, it [is] legitimate to take into account the associated costs”. 135 Routinely, the prosecution obtains an order for legal costs and investigation costs (where the statute permits the latter) “reasonably incurred” in investigating and proceeding with the criminal charges. 136 Unlike in most other criminal courts, costs represent an important sentencing factor that must be taken into account by the LEC in determining the penalty. Costs order are made even where the prosecutor does not agree with the defendant’s proposed agreed facts. 137 Courts conducting criminal hearings, including those such as the LEC exercising summary jurisdictions are empowered to order an offender to pay the prosecutor’s legal costs of the proceedings. 138 In the LEC, cost orders are usually made at the same time as the imposition of the penalty. Citing the appellate authority of EPA v Barnes ( Barnes ), 139 Preston CJ of the LEC made it clear in EPA v Causmag Ore Pty Ltd that the LEC has the discretion to consider other monetary orders in determining an appropriate penalty: 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. 140 Elsewhere, his Honour, applying these CCA decisions, has emphasised that the amount of these “costs” are relevant to the determination of the quantum of any fine or, for that matter, the level of any prison term being considered. 141 There are LEC decisions prior to Harris v Harrison which held costs were “irrelevant to the determination of an appropriate sentence to be imposed.” 142 However, now it is accepted that costs are “factored into the determination of the appropriate penalty.” 143 133 (1995) 36 NSWLR 552 at 564. 134 EPA v Barnes [2006] NSWCCA 246 per Kirby J at [78]. 135 (2014) 86 NSWLR 422 per Simpson J at [100]. 136 Unlike the POEO Act , the NV Act (rep) did not allow a court to make an order for investigation costs: see Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 per Button J at [93]. 137 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 per Lloyd J at [61]–[62]. 138 CP Act 1986, ss 257B and 257G. An offender may be ordered to pay costs upon conviction for a criminal offence: s 275B(a); or given an order under s 10 of the CSP Act in respect of an offence: s 275B(b). A s 10 order involves the dismissal of the relevant criminal charge following a finding of guilt — no conviction is recorded against the offender. 139 [2006] NSWCCA 246 at [78] and [88]. B Preston, above n 69, ((2007) 31(3) Crim LJ 142 at 160), also noted, in citing Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492 at 505, that: “[T]he amount of these cost orders will be relevant in determining the level of any term of imprisonment or the level of any fine”. 140 EPA v Causmag Ore Co Pty Ltd [2015] NSWLEC 58 at [123]. 141 B Preston, above n 139, citing Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492 at 505. 142 Port Macquarie-Hastings Council v Notley (No 2) [2013] NSWLEC 220 per Pepper J at [94]. 143 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 per Pain J at [48].