MONOGRAPH 40 volume 1

20 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW offered to pay the prosecutor’s costs of the proceedings, which may be substantial. All of these can be seen to be part of the overall punishment of the defendant: see Environment Protection Authority v Barnes [2006] NSWCCA 246 (17 August 2006) at [78], [84]. 164 Even where the actual level of the prosecutor’s costs is not quantified, but described as “reasonably substantial”, the court will take the relevant costs into consideration in determining an appropriate financial penalty. 165 As Preston CJ of the LEC articulated in considering the appropriate fine in sentencing the defendant in Corbyn v Walker Corp Pty Ltd : I also take into account that Walker will be ordered to pay the prosecutor’s costs, which are likely to be substantial. Payment of the prosecutor’s costs is an aspect of the financial burden that will be suffered by Walker as a result of the offence. 166 Furthermore, under s 248(1) of the POEO Act , the court can make an order that the prosecutor be paid the costs and expenses it reasonably incurred during the investigation of the offence, including before the prosecution of the offence has commenced. 167 Where the statute which creates the offence does not empower the court to order that the prosecutor be paid such costs and expenses, s 122 (headed “Payment of share of fine to prosecutor”) of the Fines Act 1996 permits the court to order the payment of a moiety in the fine to the prosecuting agency. The prosecutor is compensated for the costs and expenses incurred during the full course of the investigation of the offence. 168 The court has a discretion as to the portion of the fine that it may direct be paid but it can only order up to one-half of the fine imposed to be paid to the prosecutor. 169 An issue has arisen as to whether the LEC has power to reduce or limit the quantum of the prosecutor’s costs because of perceived excessiveness. During the time that (the now repealed) s 52(2) of the LEC Act applied to costs orders, 170 the LEC held that it did not have the power to make an order limiting the quantum of costs in Class 5 proceedings. Consequently, the LEC could not have regard to the offender’s means to pay 171 because of the expression used in s 52(2) that costs: “are to be determined”. 172 Section 257B of the CP Act appears to be more flexible than the repealed s 52(2) because it uses the expression: such costs as the court specifies or, if the conviction or order directs, as may be determined under section 257G. [Emphasis added.] The discretionary power to reduce costs under s 257B can be illustrated by the Ballina Local Court case of EPA v Feodoroff . 173 The offender pleaded guilty to two environmental waste offences but disputed both the need for the sizeable penalty ($22,000) sought by the Environment Protection Authority (EPA) and the professional and other costs (totalling $26,777) that the EPA was claiming as the prosecuting authority. 174 A submission from the offender’s legal counsel 175 argued, inter alia, that: 164 ibid at [117]. 165 EPA v Environmental Treatment Solutions Pty Ltd [2015] NSWLEC 160 per Pepper J at [108]–[109]; Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271 per Pepper J at [192]. 166 [2012] NSWLEC 75 at [64]. 167 Such a provision does not exist under the EPA Act or, for that matter, under the repealed NV Act : see Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 at [93]. 168 Fines Act 1996, s 122. The prosecutor cannot be a police officer: s 122(1)(a). 169 ibid, s 122(2). For example, see Secretary, Dept of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 at [58]–[63]. 170 Sections 41–55 of the LEC Act were repealed by the Justices Legislation Repeal and Amendment Act 2001, Sch 1, 2.132. The new s 41 of the LEC Act states that Pt 5 of Ch 4 of the CP Act applies to proceedings in Class 5 of the court’s jurisdiction. 171 In Carter v Wall [2003] NSWLEC 94 per Cowdroy J at [25]. See also EPA v Collis [2003] NSWLEC 190 per Pain J at [80]–[82]. 172 Section 52(2) (rep) of the LEC Act previously stated: “The costs payable by a prosecutor or defendant in accordance with a direction under this section are to be determined : (a) by agreement between the prosecutor and defendant, or (b) if no such agreement can be reached, in accordance with the regulations”. [Emphasis added.] 173 Unreported. Information on this case is available at the Environmental Law Australia website at http://envlaw.com.au/epa- v-feodoroff/, accessed 16 May 2017. 174 ibid. 175 C McGrath (counsel), “Ballina Local Court, Environmental Protection Agency v Feodoroff: plea in mitigation and submission on costs”, 26 June 2008 at http://envlaw.com.au/wp-content/uploads/feodoroff7.pdf, accessed 16 May 2017.