MONOGRAPH 40 volume 1

21 Research monograph 40 1. Introduction • the offender had “very limited means to pay a fine”: at [10], [16]–[17] • the EPA’s investigation costs sought under s 248 of the POEO Act , and representing over $12,294, were excessive, unfair and unreasonable: at [24] • the EPA’s “professional costs” sought under s 215(1)(a) of the CPA Act , and which total over $10,382 were unreasonable: at [26] • the relatively minor nature of the offence should limit the prosecuting authority’s professional and investigation costs to below $3,000: at [27] • as the proceedings were brought summarily in the Local Court (rather than the LEC), s 215 of the POEO Act fixed a ceiling of $22,000 at the time on any monetary penalty: at [21]. The Local Court accepted the submissions of the offender’s legal counsel and imposed a fine of $3,000 and ordered the offender to pay the EPA a total of $3,500 176 — representing just 13% of the legal and investigative costs the EPA originally sought to claim. In a number of appeal cases, the grounds of appeal were the asserted excessiveness or unreasonableness of the financial imposition on the offender. 177 A finding of manifest excess can be made in the context of the overall monetary penalty: • being considered disproportionate to the seriousness of the offence (or the culpability of the offender) • containing high, unreasonable and excessive prosecutor’s costs • exceeding the offender’s capacity to pay (the “means to pay” principle). 1.3.5 Costs and the correct forum The offence in Harris v Harrison , 178 which was assessed by the sentencing judge to be of low objective gravity, could have been disposed of either in the Local Court or the LEC. 179 It was, however, prosecuted in the LEC. The CCA asserted that the offence should have been dealt with in the Local Court, and that the jurisdictional limit of the Local Court ($22,000 at the time) should have been brought to the sentencing judge’s attention given its significance as a sentencing factor. 180 As stated in R v Doan : The question arises whether when dealing with a matter in a higher court, cognisance should be taken of a circumstance that the offence was within lower court jurisdiction and could have been dealt with there. In a number of cases the circumstance that a matter could have been dealt with in a Local Court has been referred to as a matter of sentence mitigation. 181 At first instance in Harris v Harrison , the LEC imposed a $28,000 fine — well above the jurisdictional limit of the Local Court — but by proceeding in the LEC the defendant was exposed to a maximum penalty that was 50 times greater than the Local Court could have lawfully imposed. 182 The CCA was of the view that “the jurisdictional limit of the Local Court ought to have been regarded as a highly- significant sentencing factor”; the court was also “satisfied that the total sentence imposed ought not to have exceeded the jurisdictional limit of the Local Court, $22,000”. 183 Yet on top of the $28,000 176 Environmental Law Australia website at http://envlaw.com.au/epa-v-feodoroff/ , accessed 16 May 2017. 177 See for example Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 and the defence submissions in EPA v Barnes [2006] NSWCCA 246 at [62]–[63]. 178 (2014) 86 NSWLR 422; (2014) 201 LGERA 277. 179 Water Management Act 2000, ss 91K(1), 364(1). At the time, the offence under s 91K(1) of tampering with water metering equipment attracted a maximum penalty of $1.1 million, while the maximum penalty which could be imposed by the Local Court was $22,000: s 364(6). The LEC judge imposed a $28,000 fine and ordered the offender to publish a notice in the local paper and also pay the prosecutor’s legal costs. 180 (2014) 86 NSWLR 422; 201 LGERA 277 at [96]–[97]. 181 (2000) 50 NSWLR 115 per Grove J at [37]; Spigelman CJ and Kirby J agreeing. 182 Harris v Harrison (2014) 201 LGERA 277; (2014) 86 NSWLR 422 per Simpson J at [95]. 183 ibid at [98]. Emphasis added.