MONOGRAPH 40 volume 1

22 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW fine, at first instance, the offender was also ordered to pay the prosecutor’s legal costs, which the sentencing judge anticipated would be “substantial” (at [100]). These costs were subsequently estimated at $75,000. 184 The court held that the appellant’s liability for costs should be assessed as if the proceedings were brought in the Local Court: In any event, any costs for which the respondent is liable should be assessed on the basis that the proceedings were brought in the Local Court and should exclude so much of the hearing time, and preparation, as was taken up with those issues [including issues that were grounds for the successful appeal]. 185 The appellate court’s approach to the assessment of monetary penalties and costs in Harris v Harrison 186 is, without doubt, a relevant consideration for prosecuting entities given the discretion afforded to them in selecting the jurisdictional forum where a legitimate choice exists. Costs will generally be much higher for matters dealt with by the LEC because of the use of barristers, the evidence being more complex and rigorously contested. Prosecuting matters in the LEC also exposes defendants to much higher maximum penalties. For environmental offences of low objective seriousness, the monetary penalties (fines, remediation costs and payment of prosecutor’s costs) ordered by the LEC may exceed the jurisdictional limit of the Local Court. The limits of the principles need to be recognised. A court can only take into account as a mitigating factor the possibility that an offence could have been disposed of summarily in “rare and exceptional” circumstances. 187 It must be clear that the offence ought to, or would have, been prosecuted in the Local Court. 188 The sentencing court can only expect that an offender’s legal representatives would recognise, as a factor in mitigation, the possibility of summary disposal in a court with a “more confined jurisdiction”. 189 Where this consideration has been completely overlooked or ignored by a sentencing judge, “it may properly justify the granting of leave to appeal”. 190 More recent CCA decisions 191 appear to have questioned and confined the application of the principle. The CCA in Baines v R 192 doubted whether it was “a rule of law” and in SM v R 193 it was said: there has been little explanation in the case law as to precisely how the possibility that the matter could have been dealt with in the Local Court should be taken into account. The CCA held in SM v R that there is no obligation to indicate in any arithmetical sense how it affected the sentence imposed. 194 In the event that the principle applies, the court can impose a sentence above the Local Court jurisdictional maximum regardless of the stance of the prosecutor. 195 In a lengthy contested hearing involving a prosecution for the alleged offence of unlawful clearing of native vegetation, Pain J in Director General, Dept of the Environment and Climate Change v Olmwood Ptd Ltd (No 2) made the point that the “making of a costs order is a matter determined in the Court’s discretion”. 196 Her Honour went on to say: While I am not precluded from considering the amount of costs incurred by a prosecutor in determining the level of penalty nor am I bound to do so. As submitted by the Prosecutor the 184 ibid at [3]. The offender was also ordered to pay for a notice in the local paper to publicise the offence (including the circumstances of the offence) and its environmental and other consequences, and any other orders made against the offender under s 353G(1)(a)) of the Water Management Act 2000. 185 ibid at [102]. 186 ibid at [91]–[103]. In short, the CCA set aside the original fine and overturned the cost order. 187 Zreika v R (2012) 223 A Crim R 460 per Johnson J at [83]. 188 ibid at [83], [109]. 189 Harris v Harrison (2014) 201 LGERA 277; (2014) 86 NSWLR 422 per Simpson J at [94]. 190 R v Crombie [1999] NSWCCA 297 at [16]. 191 Baines v R [2016] NSWCCA 132; and, SM v R [2016] NSWCCA 171. 192 Baines v R, ibid, per Basten JA at [12]. 193 SM v R [2016] NSWCCA 171 per Basten JA at [26]. 194 ibid at [24]. 195 ibid. 196 Director General, Dept of the Environment and Climate Change v Olmwood Pty Ltd (No 2) (2010) 173 LGERA 366; [2010] NSWLEC 100 per Pain J at [75].