MONOGRAPH 40 volume 1

26 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW In cases where the LEC is dealing with a corporation rather than an individual offender, the financial circumstances of the corporation, even where construed as “largely indefinite” — such as the business no longer operating, is in liquidation or, more generally, when the company’s liabilities substantially outnumber its assets — should not be used by the court to mitigate the fine to an appreciable extent. 233 Although in dealing with corporate offenders, the court needs to give consideration to “avoiding double punishment”, particularly in circumstances where the company’s operations relies on a sole director. 234 In such instances, the same source of money would be expended by the corporate offender and its “guiding mind” to pay the fines and other monetary orders imposed by the court. 235 As was the case in EPA v Alcobell Pty Ltd ; EPA v Campbell , the sole director’s personal circumstances, including limited finances and the need to avoid “double punishment” are relevant to sentencing and can lead the court to impose a substantially lower financial penalty than otherwise would have been the case, had such factors, including the recovery of substantial investigation and legal costs, not come into play. 236 1.4.1 Costs and the proportionality principle The common law has long recognised that the punishment must fit the crime. In Veen v The Queen (No 2) , the High Court declared: The principle of proportionality is now firmly established in this country. 237 The principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances. 238 The principle of proportionality finds statutory expression in s 3A of the CSP Act through one of the purposes of punishment — “to ensure that an offender is adequately punished”. Given that a fine is the overwhelming sentencing option in the LEC, it is arguable that costs orders impede the court’s capacity to apply the proportionality principle. Put another way, the fine, on its own, does not reflect the seriousness of the crime because it is determined with regard to the costs order which itself is a component of the “overall punishment”. For the proportionality principle to operate effectively in this jurisdiction, it would require an extension beyond the fine imposed to include professional costs and other financial orders made by the court. 233 B Preston, above n 229, citing EPA v Capdate Pty Ltd (1993) 78 LGERA 349 per Stein J at 353; EPA v Coe Drilling Aust Pty Ltd [2005] NSWLEC 719 per Preston CJ of the LEC at [191], [195]; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 per Preston CJ of the LEC at [275]. 234 Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 per Biscoe J at [52]–[63]. Biscoe J applied the approach by the Federal Court in ACCC v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169 per Finkelstein J at [45] and Minister for the Environment and Heritage v Greentree (No 3) (2004) 136 LGERA 89; [2004] FCA 1317 per Sackville J at [78] and referred to his own decision in The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd (No 2) [2012] NSWLEC 95 at [39], [42]. His Honour also noted that the Supreme Court decision of Palfrey v Spiteri ; Palfrey v South Penrith Sand & Soil Pty Ltd ; Palfrey v Roberts [2014] NSWSC 842 had applied Greentree and Kinnarney . His Honour concluded at [63]: [The] avoidance of a double penalty is to be taken into account with other considerations, and that other considerations such as the sentencing objectives of deterrence, denunciation and punishment still require more than a nominal fine to also be imposed on the one man company. 235 EPA v Alcobell Pty Ltd ; EPA v Campbell [2015] NSWLEC 123 per Pain J at [120], [121]. 236 ibid at [114]–[123]. 237 (1988) 164 CLR 465 at 472, per Mason CJ, Brennan, Dawson and Toohey JJ at 472. 238 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; R v Dodd (1991) 57 A Crim R 349 at 354; and, R v Whyte (2002) 55 NSWLR 252 per Spigelman CJ at [156]–[158].