MONOGRAPH 40 volume 1

24 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW 1.4 Costs and means to pay Section 6 of the Fines Act 1996 provides that: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to that fixing of the amount. Section 6 is materially similar to s 16C(1) of the Crimes Act 1914 (Cth) and the approach taken at common law. 210 The expression “is required to” in s 6 indicates that the court must have regard to the issue, that is, it is a mandatory consideration. 211 It has been held in the context of applying s 16C(1) to Commonwealth offences that although the means of an offender to pay is a mandatory consideration it is not a decisive factor. 212 Other considerations that are relevant in determining the amount of a fine include the seriousness of the offence, its prevalence and deterrence. 213 In some cases, consideration of the financial circumstances of an offender may increase, rather than decrease, a fine in order for it to be a deterrent. 214 A serious offence demands a serious punishment including, where appropriate, the imposition of a large fine. Preventing environmental offences is especially important 215 and, therefore, a fine that is perceived to be substantial increases its effectiveness as a deterrent. 216 A fine may be only part of the penalty imposed on the offender, and consideration needs to be given to other monetary amounts the offender may be ordered to pay, including the prosecutor’s legal costs of the proceedings. 217 The position after Barnes is that costs are an important aspect of punishment and are taken into account by the court. In some cases it is considered with the “means to pay” principle provided in the Fines Act 1996. 218 Simply speaking, a court should not impose a fine where the offender has limited or no means to pay: The imposition of a large fine does involve a number of considerations. It is trite to say that a court generally should not impose a fine which the offender does not have the means to pay, even though these days failure to pay a fine does not lead to imprisonment but to a civil execution for its non-payment. ... It is clear I think that what is required where the court is contemplating the imposition of a financial penalty is a decision on whether or not the appellant has the means. 219 In Chief Executive, Office of Environment and Heritage v Fish (No 2) , 220 Pain J, after quoting R v Rahme above, said: “I accept that the Defendant has a limited financial capacity to pay a large fine and will take that factor into account in sentencing”. Later in the judgment, her Honour said: I will take the same approach as I took in Barnes at first instance and take into account that the Defendant is liable for reasonably substantial legal costs in circumstances where he has limited means to pay. 221 210 Flego v Lanham (1983) 32 SASR 361 per Wells J at 365–367. 211 Retsos v R [2006] NSWCCA 85 per Sully J at [14]. The sentencing judge erred because there was no credible evidence which established that the applicant had the capacity to pay fines totalling $80,000. 212 Jahandideh v R [2014] NSWCCA 178 per Rothman J at [16]–[17]. 213 ibid per Rothman J, at [16]–[17]; Darter v Diden (2006) 94 SASR 505 at [20]; Smith v R (1991) 25 NSWLR 1 at 17–18. 214 Jahandideh v R, ibid at [17]. 215 B Preston, “Principled sentencing for environmental offences — Part 2: Sentencing considerations and options”, (2007) 31(2) Crim LJ 142 at 164. 216 In Darter v Diden (2006) 94 SASR 505 at [29], Doyle CJ said: “A substantial fine was called for because, in particular, of the seriousness of the offence and its prevalence. Deterrence remains a factor, even if it is attenuated by the unlikelihood of recovery of the fine in future like cases”. 217 EPA v Barnes [2006] NSWCCA 246 per Kirby J at [78] and [88]. 218 Fines Act 1996, s 6. 219 R v Rahme (1989) 43 A Crim R 81 per Finlay J at 86–89. 220 (2014) 202 LGERA 18; [2014] NSWLEC 67 per Pain J at [44]. 221 ibid at [49].