MONOGRAPH 40 volume 1

64 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW It has been made clear by the High Court that “the intermediate appellate courts of appeal provide the most useful guidance to a sentencing judge” and it is through their work that consistency in sentencing is achieved. 381 Whether an offence could have been prosecuted in the Local Court is “a relevant sentencing consideration” that is well established by appellate authority and must be considered in determining an appropriate penalty. 382 In Harris v Harrison , while Pepper J judged the seriousness of the offence to be low, the CCA found that her Honour started the assessment of the appropriate monetary penalty at a level that was available to the LEC but well above the Local Court’s jurisdictional limit of $22,000. 383 The CCA determined, by the prosecutor bringing proceedings before the LEC, that “it exposed the appellant to a maximum penalty 50 times that which could be imposed in the Local Court”. 384 The CCA also held that the total sentence imposed on the appellant “ought not to have exceeded the jurisdictional limit of the Local Court”. 385 Reflecting on this CCA decision, it is possible to provide some insight into the proportion of principal offences dealt with by the LEC for which proceedings may have commenced, in theory at least, in the Local Court. Table 8 is divided into three sections, reflecting LEC fines for offences finalised in three distinct sentencing “regimes”: 1. after the jurisdictional limit of the Local Court increased to $110,000 and post Harris (between 15 May 2014 and the end of the study period); 2. after the jurisdictional limit of the Local Court increased to $110,000 but pre Harris (between 6 February 2012 and 15 May 2014); 3. before the jurisdictional limit of the Local Court increased from $22,000 to $110,000 and pre Harris (between the start of study period 1 January 2000 and 6 February 2012). Looking first at post- Harris offences, where the Local Court operated under a jurisdictional limit of $110,000, the proportion of principal offences that attracted a fine less than the Local Court’s jurisdictional limit in the LEC was almost 87%. 386 Only two of 15 environmental offences in the study period that followed Harris v Harrison resulted in a fine greater than the jurisdictional limit of the Local Court being imposed by the LEC. This would seem to suggest, on face value, that a substantial number of post- Harris LEC sentencing decisions could be subject to a similar ground of appeal as upheld in Harris v Harrison . Furthermore, “low objective gravity” was identified in Harris v Harrison as a factor that makes an offence potentially suitable for prosecution in the Local Court, and to the maximum penalty available in that jurisdiction. 387 Six of the 13 offences (46.2%) in the post- Harris period which received fines of less than $100,000 were assessed by the LEC as being of “low” objective seriousness. 388 In the pre- Harris period, but after the Local Court’s jurisdictional limit was raised to $110,000, over 89% of offences prosecuted in the LEC resulted in a fine that was less than the Local Court’s jurisdictional limit. Twenty-five of the 49 offences (51.0%) in this period, which received fines of less than $100,000, were assessed by the LEC as being of “low” objective seriousness and, thus, potentially suitable for prosecution in the Local Court and the lighter maximum penalties available in that jurisdiction. 389 381 The Queen v Pham (2015) 90 ALR 13 per Bell and Gageler JJ at [50]; French CJ, Keane and Nettle JJ at [28]. 382 Harris v Harrison (2014) 86 NSWLR 422 per Simpson J at [92]–[94] citing R v Crombie [1999] NSWCCA 29; R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317; and Zreika v R [2012] NSWCCA 44. 383 [2013] NSWLEC 105 per Pepper J at [174]: Synthesising the objective circumstances of the commission of the offence, the subjective circumstances of Mr Harris and the general pattern (to the extent that one can be said to exist) of sentencing for offences such as the one committed by Mr Harris, I consider that the imposition of a monetary penalty of $40,000, discounted by 30% to $28,000, having regard to the subjective mitigating factors discussed above, and including the payment by Mr Harris of the prosecutor’s costs, is appropriate. 384 Harris v Harrison (2014) 86 NSWLR 422 per Simpson J at [95]. 385 ibid at [98]. The CCA confirmed the conviction but vacated the orders made by Pepper J, including the order that the applicant pay the costs of the prosecution. The new order included a two-year good behaviour bond and the publication of an amended notice. 386 Not included in the calculations are offences dealt with by the LEC that were: (i) Tier 1 offences that could not be disposed of by the Local Court, and (ii) offences where an Additional Order was made by the LEC that could not be ordered by a Local Court (s 250(1) of the POEO Act ). 387 Harris v Harrison (2014) 86 NSWLR 422 per Simpson J at [96]–[97]. 388 The fine amounts ranged from $22,500 to $82,500. The average fine for these six offences was $48,208 (median: $38,375). 389 The fine amounts ranged from $3,000 to $80,000. The average fine for these 25 offences was $21,242 (median: $15,000).