Costs orders in criminal proceedings under s 257B of the Criminal Procedure Act 1986 (NSW) are compensatory, not punitive. Where a defendant has limited capacity to pay, the correct approach is to reduce the fine rather than refuse or reduce the costs order in favour of the prosecutor. A sentencing court that contemplates departing from an agreed costs position must warn the parties and afford them an opportunity to be heard. However, the CCA retains a residual discretion not to intervene where ordering costs without a corresponding reduction in fines (which were not appealed) would produce unfairness.
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