MONOGRAPH 40 volume 1

25 Research monograph 40 1. Introduction Nonetheless, there have been instances where this sentencing principle has been seen to clash with other sentencing objectives, such as denunciation of the crime, general and specific deterrence and the punishment being proportionate to the gravity of the crime. 222 For example, in the LEC case of EPA v Causmag Ore Co Pty Ltd , 223 Pain J stated at [68]: If the gravity of the offence is serious a lack of capacity to pay a fine is not the most important factor, rather that is the need for deterrence and punishment, per Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94 per Lloyd J at [15]–[16].” In the Court of Appeal contempt case of Smith v R , 224 opinion was divided on the appropriateness of a substantial fine imposed on an appellant with extremely limited means to discharge the fine. 225 While Kirby J (at 21) found the fine excessive, Mahoney JA upheld the fine noting (at 24) its place as “the best of the available alternatives” and its value to deter other possible offenders, even though it was recognised “that in the end the fine may not be able to be collected”. Meagher JA (at 24) strongly disagreed with Kirby J, arguing that if the appellant “was rich enough to commit” the (contempt) offence then “he was rich enough to bear the consequences”. Any and all costs should be taken into account in considering an offender’s capacity to pay, 226 and the court may reduce the amount of the fine (or the “total” monetary imposition) in awareness of the offender’s modest means and impecuniosity. 227 Conversely, where it has been assessed that the offender does have the means to pay, the court may decide that a reduction in the fine amount is not justified, even where the person is “cash poor” but “asset rich”. 228 Of course, information on the offender’s capacity to pay must be reasonably and practically made available to the court. 229 Where it is not, the court is under no obligation to reduce the monetary punishment. 230 Appellate authority has made it clear that the sentencing court cannot independently investigate financial circumstances or call evidence; this leaves a sentencing judge relying upon the materials tendered to the court during the course of sentencing proceedings. 231 There is also a realistic expectation that an offender’s legal counsel will, at first instance, draw to the sentencing judge’s attention particular factors, such as adverse financial circumstances, which should be taken into account in mitigation. 232 222 Veen v The Queen (No 2) (1988) 164 CLR 465, per Mason CJ, Brennan, Dawson and Toohey JJ at 472; Hoare v R (1989) 167 CLR 348 per Mason CJ, Deane, Dawson, Toohey and McHugh JJ at 354. 223 [2009] NSWLEC 164. 224 (1991) 25 NSWLR 1. 225 The appellant was already serving life imprisonment for murder and, as Mahoney JA noted (at [23]), a further period of imprisonment for a blatant and wilful contempt offence would serve no purpose: it would “be seen by others as derisory”. 226 Blue Mountains City Council v Carlon [2008] NSWLEC 296 per Biscoe J at [60], citing EPA v Barnes per Kirby J at [88] (Mason P and Hoeben J agreeing); Hornsby Shire Council v Devaney [2007] NSWLEC 199 per Biscoe J at [84]. 227 EPA v Causmag Ore Co Pty Ltd [2015] NSWLEC 58 per Preston CJ of the LEC at [122]. 228 EPA v Hardt [2007] NSWLEC 284 per Preston CJ of the LEC at [67]. In this case, the offender was on an invalid pension and his “wealth” was in the form of two residential properties both of which were mortgaged: at [4], [9]. 229 B Preston, “Principled sentencing for environmental offences”, paper presented at the 4th International IUCN Academy of Environmental Law Colloquium, Compliance and enforcement: toward more effective implementation of environmental law, 18 October 2006, White Plains, New York, p 27. 230 In Simpson v Office of Environment and Heritage (2014) 205 LGERA 17; [2014] NSWLEC 34 at [53], Pain J found that there was no basis for reducing the amount of penalties imposed because of the amount of agreed costs in the Local Court given that he was not provided with any evidence of the appellant’s means. Her Honour also commented that “the agreed costs were sizeable no doubt because the Appellant did not plead guilty until the end of the first day of hearing”. It may be argued that Simpson’s counsel should not have run the argument it did without evidence of his means to pay. To ask a court to apply Barnes but then offer no evidence as to means or the fiscal impact on him was a mistake. 231 Jahandideh v R [2014] NSWCCA 178 per Rothman J at [31]. 232 Zreika v R (2012) 223 A Crim R 460 per Johnson J at [80], citing Edwards v R [2009] NSWCCA 199 per Johnson J at [11] and Dyer v R [2011] NSWCCA 185 per Johnson J at [49].