MONOGRAPH 40 volume 1

19 Research monograph 40 1. Introduction costs in cases involving serious environmental crimes can be considerable and may even comprise the greater part of the total pecuniary penalty incurred by the offender. Pepper J recognised this in Harrison v Harris : Costs orders for environmental prosecutions can be substantial, and are often greater than the penalty imposed ... A costs order is equally capable of acting as a deterrent to others where the quantum of the costs are publicised, whether that be within the judgment or elsewhere. 154 Some further examples illustrate the point. In Wingecarribee Shire Council v O’Shanassy (No 6) , the Council’s costs were estimated to be $300,000 and the offender was fined $93,500. 155 In The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd 156 the prosecutor’s costs were estimated at roughly $200,000, to be paid jointly by the responsible corporation which was fined $50,000 and the company director who was separately fined $30,000. In EPA v Queanbeyan City Council (No 3) , the LEC utilised the provisions of s 250(1)(e) of the POEO Act to assign a monetary penalty of $80,000 for the purpose of financing a local environmental project. 157 In this case, the total prosecutor’s legal and investigative costs ran to over $344,000. 158 The sentencing judge also noted that the monetary penalty was reduced as a result of “the considerable quantum of costs” that the council agreed to pay. 159 In EPA v Alcobell Pty Ltd 160 the prosecutor’s legal costs were estimated “to exceed $210,000” and the investigation costs were $23,409, while the fines imposed on the offending company and company director totalled $87,000. 161 In Leichhardt Council v Geitonia Pty Ltd (No 7) , a corporation, its “sole shareholder, director and alter ego”, and a project management company in liquidation were fined $250,000, with costs estimated to be around $500,000. Biscoe J said: It is common ground that payment by the defendants of the prosecutor’s costs is an aspect of punishment and should be taken into account when considering the penalty to be imposed: EPA v Barnes [2006] NSWCCA 246 at [78]. In the present case there was a three week trial, with the prosecutor represented by senior and junior counsel. The prosecutor estimates that its costs are in the vicinity of $500,000. 162 The impact of a costs order as part of the overall punishment is also illustrated by Garrett v Williams . 163 The offender was the sole director and secretary of a small mining company who destroyed Aboriginal objects and excavated across the boundary of a declared Aboriginal place. The conduct constituted three offences under s 90(1) of the NPW Act . The offender was the first person to participate in a LEC recommended restorative justice conference. Representatives from the local Aboriginal community (who were considered victims of the offence) participated in the conference that also used a court-appointed conference facilitator. Following the conference, the offender agreed to establish a heritage trust for the affected Aboriginal community and donate a four-wheel drive truck (to the value of $20,000), a trailer (to the value of $3,000), a quad bike (to the value of $8,000) and a fuel card (to the value of $1,200). The fines imposed for the three offences — $750, $200 and $450, respectively — were set taking into account, inter alia, the offender’s participation in the conference and the prosecutor’s as yet assessed costs. Preston CJ of the LEC noted: I take into account the defendant’s participation in the restorative justice conference and the significant costs that the defendant has incurred in and as a result of that conference. I take into account the defendant’s offers, both monetary and equipment, to the Aboriginal people of the area that are an outcome of the conference process. I also take into account that the defendant has 154 Harrison v Harris (2013) 195 LGERA 79; [2013] NSWLEC 105 per Pepper J at [171]. 155 Wingecarribee Shire Council v O’Shanassy (No 6) [2015] NSWLEC 138 per Pepper J at [227]. 156 The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd (No 2) [2012] NSWLEC 95 per Biscoe J at [42]. 157 EPA v Queanbeyan City Council (No 3) [2012] NSWLEC 220 per Pepper J at [281]–[284]. 158 ibid. 159 ibid at [280]. 160 [2015] NSWLEC 123 per Pain J at [119]. 161 ibid at [124]. 162 [2015] NSWLEC 79 at [64]. 163 [2007] NSWLEC 96.