MONOGRAPH 40 volume 1

66 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW Figure 8: Percentage of fines ordered in the LEC that was less than the jurisdictional limit of the Local Court at the time of sentencing — by sentencing regime — 2000 to 2015 (principal offence only) As proceedings for most environmental offences may be commenced in either the Local Court or in the LEC in its summary jurisdiction, Harris v Harrison and other sentencing decisions in the LEC 391 suggest that prosecution could have been brought in the Local Court. Where the sentencing judge believes that the matter was capable of being dealt with in the Local Court, that fact may be regarded as a matter in mitigation. 392 Furthermore, where this consideration has been overlooked or ignored by a sentencing judge, it may be viewed as an error in law, 393 and “may properly justify the granting of leave to appeal”. 394 Although, it must be clear that the offence ought to, or would have, been prosecuted in the Local Court. 395 0 10 20 30 40 50 60 70 80 90 100 86.7 89.1 54.6 Per cent post- Harris (LC limit: $110k) (n=15) pre- Harris (LC limit: $110k) (n=55) pre- Harris (LC limit: $22k) (n=324) Sentencing regime Fine less than or equal to Local Court limit Fine greater than Local Court limit 13.3 10.9 45.4 391 Harris v Harrison (2014) 86 NSWLR 422. In Council of the City of Shoalhaven v Wilson [2015] NSWLEC 93, Pain J at [32] noted that the charge could have been brought in the Local Court with a jurisdictional maximum of $110,000, instead of the maximum penalty of $1.1 million available to the LEC. The financial penalty was reduced from $12,000 to $8,400 in consideration of this and other mitigating factors (at [34]). 392 EPA v Barnes [2006] NSWCCA 246 per Kirby J at [59]. Also see the discussion in Costs and the correct forum at [1.3.5]. 393 Although in R v Jammeh [2004] NSWCCA 327 at [28], Buddin J contended: “[A] failure by a sentencing judge to mention that a matter could have been dealt with in the Local Court cannot of itself constitute error”. (Wood CJ at CL and Shaw J agreeing.) 394 R v Crombie (1999) NSWCCA 297 per Wood CJ at CL at [16]. 395 Zreika v R (2012) 223 A Crim R 460 per Johnson J at [83].