MONOGRAPH 40 volume 1

23 Research monograph 40 1. Introduction purpose of the costs order is to compensate it for the costs it has been put to in pursuing this prosecution. The fact alone that there is likely to be a large impost on this Defendant because of the contested hearing resulting from this Defendant’s plea of not guilty is not a relevant factor in relation to costs in this matter. The appropriate order I will make is that the Defendant must pay the Prosecutor’s costs as agreed or assessed. 197 In Port Macquarie Hastings Council v Notley (No 2) , the LEC convicted the defendant of the offence of carrying out development without consent contrary to s 76A(1)(a) of the EPA Act. Pepper J ordered the defendant to pay a fine of $28,000 and the council’s costs of the proceedings which, at the time of sentencing had not been assessed, although her Honour stated that they were “likely to be not insubstantial given its procedural history”. 198 The offence was assessed as being of low objective seriousness and as causing no actual environmental harm. 199 These factors alone, on face value, should have entitled the matter to be dealt with in the Local Court consistent with the CCA’s ruling in Harris v Harrison . 200 However, in disposing of the case in the LEC, Notley was exposed to a maximum penalty ($1.1 million) that was manifestly greater than the jurisdictional limit of the Local Court at the time ($110,000). 201 This was an issue that had not escaped the defence counsel’s attention. The defendant had submitted that a factor in mitigation should be the Council’s decision to prosecute the matter in the LEC rather than in the Local Court — “thereby escalating the costs payable by him” 202 — the presumption being that the prosecutor’s costs would be reduced overall in reflecting reduced preparation and hearing time. 203 While her Honour acknowledged the appellate authority of Barnes in recognising that the payment of the prosecution’s costs can be considered by the court when fixing an appropriate monetary penalty 204 she also viewed this factor as “irrelevant to the determination of an appropriate sentence.” 205 This was despite a submission from Notley’s lawyers that the substantial costs 206 “should be taken into account [as per Barnes ] in fixing an appropriate penalty.” 207 Also, as it was in Barnes where that “defendant had limited means to pay a substantial fine (and costs)”, 208 Notley’s capacity to pay was also identified by the defence as an important consideration in the determination of an appropriate penalty. 209 197 Dept of the Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15 and Director General , Dept of the Environment and Climate Change v Olmwood Pty Ltd (No 2), ibid. 198 Port Macquarie Hastings Council v Notley (No 2) [2013] NSWLEC 220 per Pepper J at [93]. 199 ibid. The prosecuting council conceded that there was no evidence of actual harm to the environment by the commission of the offence (at [63]), only harm to “the integrity of the planning system” which is, nonetheless, regarded as an element of environmental harm (at [63]). Furthermore, the unlawful structure was demolished prior to the sentencing hearing [64]. Her Honour also found the offence to be of low objective gravity (at [76]). 200 Harris v Harrison (2014) 201 LGERA 277; (2014) 86 NSWLR 422 per Simpson J at [92]. 201 ibid at [95]–[98]. Pepper J presided over the first instance hearing of Harrison v Harris [2013] NSWLEC 105. The defendant appealed against the orders made at first instance. The appeal was successful and the original orders overturned, with the NSWCCA making new determinations. 202 Port Macquarie-Hastings Council v Notley (No 2) [2013] NSWLEC 220 per Pepper J at [94]. 203 Harris v Harrison (2014) 201 LGERA 277; (2014) 86 NSWLR 422 per Simpson J at [102]. 204 Port Macquarie-Hastings Council v Notley (No 2) [2013] NSWLEC 220 per Pepper J at [92] citing EPA v Barnes [2006] NSWCCA 246 per Kirby J at [78] and [88]. 205 Port Macquarie-Hastings Council v Notley (No 2), ibid at [94]. 206 The total monetary value of payments ordered in Port Macquarie-Hastings Council v Notley (No 2) by the LEC cannot be determined as the actual prosecutor’s costs were unknown. However, the findings of this study may be used to estimate the total fiscal cost to the defendant for the offence being sentenced in the LEC at between $32,000 and $37,000. As mentioned, prosecutor’s costs for this offence if dealt with by a local court, would have been substantially lower. Using the decision of the Local Court in EPA v Feodoroff, above n 173, to reduce by 87% the prosecutor’s costs payable by the defendant as a guide, an estimate of the total monetary payments imposed by a local court — had the proceedings been dealt with in that forum — may be calculated. The total monetary —“hit” to the defendant would be in the vicinity of $15,000 or $16,000, being the fine of $12,000 plus an estimated $3,250 in prosecutor’s costs. This speculative figure represents half the total pecuniary penalty that the defendant actually paid. The reasons for the “more substantial” actual total: firstly, the prosecutor decided to proceed with the charge in the higher jurisdiction LEC; and, secondly, Pepper J believed the escalated costs of a LEC hearing irrelevant in determining the appropriate sentence (ibid at [94]). 207 ibid. 208 EPA v Barnes [2006] NSWCCA 246 per Kirby J at [70]. 209 Port Macquarie-Hastings Council v Notley (No 2) [2013] NSWLEC 220 per Pepper J at [95]–[97].