MONOGRAPH 40 volume 1

18 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW Under s 248 of the POEO Act , an offender may be ordered to pay the prosecuting agency’s costs where “reasonably incurred” through the investigative process. The costs relating to the investigation of the offence: means the costs and expenses: (a) in taking any sample or conducting any inspection, test, measurement or analysis, or (b) of transporting, storing or disposing of evidence. 144 The professional and other costs payable are determined under s 275G of the Criminal Procedure Act 1986 ( CP Act ) either: by agreement between the prosecutor and accused person; or, if no such agreement can be reached, in accordance with the current legal costs legislation. 145 An overarching legal principle laid down by the High Court in making an order to recover legal costs is that the order is made to compensate the successful party, not punish the unsuccessful party. 146 This legal principle is also adhered to and applied in the LEC: Although costs orders are compensatory rather than punitive … they should be seen as an element of the overall penalty imposed, and can affect the amount of a fine. 147 1.3.4 The LEC’s application of costs principles It has been noted in the LEC that costs orders are “routinely made” and that “payment of the prosecutor’s costs is a constant aspect of punishment such that it is embedded in the general pattern of sentencing for all offences”. 148 The total penalty that is imposed upon an offender takes into account any order against the defendant for the payment of the prosecutor’s legal costs. 149 As Pepper J said in Wingecarribee Shire Council v O’Shanassy (No 6) : The payment of a prosecutor’s costs is viewed as an aspect of punishment and should be considered in the determination of the appropriate penalty as a factor that acts to reduce the penalty . 150 [Emphasis added.] This reflects the often cited sentencing decision by the LEC that “[h]ad the costs not been so great” then “a much higher penalty” would have been imposed. 151 Other costs borne by the defendant are also viewed as an aspect of punishment, whether they be part of the sentence imposed, such as the ordering of a publication order, 152 or suffered as a result of the commission of the offence in the form of extra-curial punishment. 153 Liability for the prosecutor’s 144 POEO Act , s 248(3). 145 Legal costs legislation “as defined in section 3A of the  Legal Profession Uniform Law Application Act 2014 (with or without modifications prescribed by the regulations)”: s 257G(b) of the CP Act , see n 18. See Legal Profession Uniform Law Application Act 2014, Pt 7. 146 Latoudis v Casey (1990) 170 CLR 534; Oshlack v Richmond River Council (1998) 193 CLR 72 per Gaudron and Gummow JJ at [40]. 147 Chief Executive, Office of Environment and Heritage, Dept of Premier and Cabinet v Powell [2012] NSWLEC 129 per Shehan J at [147] citing Latoudis v Casey, ibid, Director-General, Dept of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 and EPA v Barnes [2006] NSWCCA 246. 148 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 per Biscoe J at [50]. 149 EPA v Hardt [2007] NSWLEC 284 per Preston CJ of the LEC at [66]. 150 [2015] NSWLEC 138 at [226] citing EPA v Barnes [2006] NSWCCA 246 at [78] and [88]; EPA v Queanbeyan City Council (No 3) (2012) 225 A Crim R 113; [2012] NSWLEC 220 at [248] and Director-General of the Dept of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [68]). See also Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140 at [50]. 151 EPA v Barnes [2006] NSWCCA 246 per Pain J at [53]. 152 In Eurobodalla Shire Council v Tip It Today Broulee Pty Ltd [2007] NSWLEC 274 at [35], Pain J completed her considerations by noting that: “Finally the Defendant’s counsel argued I should consider the imposition of a publication order as a relevant factor in setting the amount of penalty as part of the ‘weighing up’ exercise the Court must undertake. I agree”. 153 In Director-General, Dept of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 at [194], Pepper J found that the negative publicity and hate mail received by the defendant was a form of extra-curial punishment. Similarly, in Garrett on behalf of the Director-General of the Dept of Conservation and Environment v House [2006] NSWLEC 492 at [60]–[61], Pain J accepted that negative publicity had adversely affected the defendant’s business and personal life, which contributed to a substantial discount in the fine ultimately ordered.