CEAL Limited (Trading as Multiquip Quarries) v Secretary, Department of Planning, Housing and Infrastructure

1. [1]

   PAYNE JA: I agree with Rigg J.

2. [2]

   WEINSTEIN J: I agree with Rigg J.

3. [3]

   RIGG J: On 28 March 2025, Pain J sentenced CEAL Limited (Trading as Multiquip Quarries) in the Land and Environment Court in respect of two offences, prosecuted by the Secretary of the Department of Planning, Housing and Infrastructure, who is the respondent to this appeal. These were offences of carrying out development otherwise than in accordance with the conditions of consent, contrary to s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act”). The particulars of the two offences were:

   1. (1)

      Offence 1 – from 18 September 2020 to 20 April 2022, the appellant used silt cells 1, 2 and 3a and silt and oversize management areas 1 and 2, each to the west of the acoustic bund at 5152 Oallen Ford Road in Bungonia NSW (“the premises”), in a manner that was not generally in accordance with the project layout incorporated into the approval by condition 2 of schedule 2 of modification 3 of Project approval 07_155 (“MOD 3”); and

   2. (2)

      Offence 2 – between 22 September 2020 and 9 September 2021, the appellant did not comply with condition 37A of MOD 3 in that it imported “screened waste material” to the premises without the Planning Secretary having first approved a Waste Management Plan for the Ardmore Park Quarry (“the quarry”). The material imported was in the order of 6,000 tonnes of Virgin Excavated Natural Material (“VENM”) – i.e., pristine soil with “No odour, staining, potential asbestos contaminating material or other inclusions”.

4. [4]

   The appellant was convicted and ordered to pay $56,000 for offence 1 and $42,500 for offence 2, a total effective fine of $98,500 for both offences. Additionally, the sentencing judge ordered that the appellant:

   1. (1)

      Pay the prosecutor’s costs of $45,000;

   2. (2)

      Pay a moiety to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW); and

   3. (3)

      Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) (“the POEO Act”), publish or cause to be published notices in relation to its offending on its website and in certain newspapers and to provide evidence of such publications to the respondent prosecutor within 35 days.

5. [5]

   The appellant appeals as of right to this Court against the sentences imposed on it, pursuant to s 5AA, read with s 5AB, of the Criminal Appeal Act 1912 (NSW).

6. [6]

   The appellant relies on the following grounds of appeal:

   1. (1)

      The sentencing judge erred in her consideration of whether a disposition pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [“the Sentencing Act”] was available by rejecting that as a sentencing option before considering the appropriate sentence.

   2. (2)

      The sentencing judge erred by applying a wrong principle in considering the extenuating circumstances in which the offences were committed.

   3. (3)

      The sentencing judge erred by taking into account an irrelevant consideration, namely that an order pursuant to s 10(1)(b) of [the Sentencing Act] ‘is more appropriately made in the case of an individual defendant, as appears to be the usual practice.’

Circumstances of the offending and the offender

1. [7]

   The appellant was sentenced on the basis of a statement of agreed facts, as well as further documentary material tendered by the respondent and evidence from an officer of the respondent and a number of officers of the appellant. The agreed facts were set out by the sentencing judge at [4]-[9] of Secretary, Department of Planning, Housing and Infrastructure v CEAL Limited (Trading as Multiquip Quarries); Secretary, Department of Planning and Environment v CEAL Limited (Trading as Multiquip Quarries) [2025] NSWLEC 26 and are reproduced here:

2. [8]

   The evidence regarding other important aspects of the circumstances of the offending, and the offender, are addressed below in dealing with the submissions for the appellant at first instance and the sentencing judgment.

Submissions for appellant at first instance

1. [9]

   Comprehensive written and oral submissions were advanced for the appellant before the learned sentencing judge.

2. [10]

   The written submissions commenced with the heading “A. FACTUAL CIRCUMSTANCES AND SUMMARY OF ARGUMENT”. The paragraphs thereunder set out the details of the offences, the absence of environmental harm, and the detail of the evidence of Mr Wall, Quarry Operations Manager for Multiquip Aggregates Pty Ltd, a wholly owned subsidiary of the appellant, demonstrating that the development the subject of both offences was generally in accordance with the first and second Modifications Project Approval (“MOD 1” and “MOD 2”). The appellant’s misunderstanding that the quarry was being operated legally was explained in paragraph 6 of this first section. The proposition was said to be supported by a number of factors, including negative consequences for the appellant (such as operating on more restrictive transport hours than were required, and paying a higher contribution rate than required), disclosure of the relevant conduct in annual reviews for the years 2020 and 2021, Mr Wall’s evidence of the defendant’s disclosure of the development the subject of the first offence, with no regulatory concerns or breaches communicated back, and Mr Wall’s further self-report of the first offence after receipt of advice that the appellant was, contrary to its own understanding, operating the quarry contrary to the conditions of MOD 3. Reference was made to an intention to undertake some remediation work that was not yet permitted.

3. [11]

   The submission was then advanced that:

4. [12]

   Paragraphs under heading “B” of the appellant’s written submissions addressed an issue of no relevance to the appeal – an objection to the extent of documentary material understood to be pressed by the respondent.

5. [13]

   Under the heading “C. THE OBJECTIVE SERIOUSNESS OF THE OFFENCES”, reference was made to the observations of Preston CJ in Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi [2024] NSWLEC 139 at [35] regarding the following factors being of relevance in relation to the objective seriousness of an environmental offence:

6. [14]

   Under the heading “D. SUBJECTIVE CONSIDERATIONS”, the written submissions addressed a number of issues. These were in fact a mixture of objective and subjective factors, correlating with the list of mitigating factors contained in s 21A(3) of the Sentencing Act. Firstly, the guilty pleas were referred to and it was submitted that “they are entitled to a full 25% discount. It is further submitted that this is a case where ‘the discount’ will [or should] be reflected in a step down in the hierarchy of sentencing options: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [156].”

7. [15]

   There then followed seven points said to contain submissions as to the other relevant subjective considerations. The first two contentions were that, in accordance with s 21A(3)(a) of the Sentencing Act the injury, emotional harm, loss or damage caused was not substantial, and that in accordance with s 21A(3)(b) of the Sentencing Act the offence was not part of a planned or organised criminal activity. These are factors that went to the objective seriousness of the offending.

8. [16]

   Truly subjective factors corresponding with s 21A(3)(e), (g), (f), (i) and (m) were then referred to. These were, respectively: having no record of previous convictions, having an unlikelihood of reoffending, being of good character, having demonstrated contrition and remorse, and having assisted the prosecutor (especially in relation to the first offence) by disclosing non-compliance.

9. [17]

   Under the heading “E. THE APPROPRIATE SENTENCING DISPOSITION”, the terms of s 10 of the Sentencing Act were set out. The Judicial Commission of NSW’s Sentencing Bench Book was submitted to state that such an order is designed as a “safety valve” to operate in extenuating circumstances or where the matter is so trivial that punishment does not seem appropriate. The Court was also directed to the judgment of Howie J in Application by the Attorney General under Section 37 of the Crimes Sentencing Procedure Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSWCCA 303 (“High Range PCA Guideline”) at [131]. Authority regarding the wide-ranging nature of the discretion conferred by s 10 was referred to. Authority regarding the requirement to consider the nature of the offence defined in the statute creating it and the penalty provided, and the perceived object of the relevant statutory provision, was referred to.

10. [18]

    The submissions regarding disposition pursuant to s 10 of the Sentencing Act, by reference to such principles, covered over two pages of the written submissions. The only subjective factor referred to under heading “E” was the appellant’s lack of prior convictions. The submissions were focused on the assertion of very low objective criminality and extenuating circumstances, being the appellant’s mistaken and not unreasonable belief that what was being done was permissible. The absence of harm was referred to.

11. [19]

    The availability of a conditional release order (“CRO”) for a corporation was analysed – this being a submission that will have more significance in connection with the appellant’s third ground of appeal – and the submission advanced that:

12. [20]

    The final paragraph under the heading regarding the appropriate sentencing disposition was that, alternatively, the Court would convict the appellant of one or both offences and order it to pay (a) modest fine(s). In this respect, the availability of finalising the matter in the Local Court, with a maximum penalty of $110,000 per offence pursuant to s 9.57(3) of the EP&A Act, was submitted to provide sufficient sentencing scope in the circumstances of this case.

13. [21]

    In written submissions at first instance, counsel for the respondent relevantly submitted at paragraph 29, under the heading “ORDERS SOUGHT”:

14. [22]

    During oral submissions, counsel for the appellant addressed in detail the reasons supporting assessment of the objective seriousness of the offending as of the lowest order, and addressed favourable subjective features. As to the guilty plea, it was submitted that a full 25% discount was warranted, and that although this was usually applicable to sentences of imprisonment, the discount was also applicable to fines. It was also submitted that “It can reflect a step down in the hierarchy of sentencing options … It has applicability in relation to fines. If your Honour might be considering something else it can be used to step down the hierarchy of sentencing options.”

15. [23]

    Later, counsel for the appellant agreed with a question from her Honour that a “s 10 application” was being sought. The factors supporting this were articulated as:

16. [24]

    It was submitted that a section 10 application in the Land and Environment Court would have to be unique, and that the articulated combination of circumstances made it so. Paragraph 44 of the written submissions, referred to above, was one contending that there was very low objective criminality and extenuating circumstances because of the mistaken but not unreasonable belief that what was being done was permissible.

17. [25]

    It was accepted on behalf of the appellant that the “strength or the circumstances for a s 10 are stronger … in relation to the first offence rather than the second”. In addressing the evidence regarding the reasonable belief that the conduct was permitted, it was agreed that there seemed to be less extenuating circumstances in respect of offence 2.

18. [26]

    Counsel for the appellant submitted that while a CRO is somewhat unusual for a corporation, it is not something that cannot be done. It was submitted to be a very good sentencing option if the Court had concerns about future behaviour. It was acknowledged that specific conditions such as drug and alcohol rehabilitation or ankle monitoring were inapplicable.

The sentencing judgment

1. [27]

   The structure of her Honour’s judgment is significant to the appellant’s first ground of appeal. Her Honour commenced by noting that guilty pleas had been entered to the two offences, and provided a general outline of the work of the parties and the appellant’s operations.

2. [28]

   After quoting the agreed facts her Honour set out the substance of the unchallenged evidence of Mr Wood, Senior Compliance Officer for the respondent, and that of Mr Wall. The analysis of Mr Wall’s evidence, set out over four pages of the judgment, covered numerous aspects of the appellant’s case, relied upon at first instance and on appeal. It was this evidence, for example, through which the appellant expressed its remorse. It was this evidence which demonstrated that the offending conduct was unintentional, and the bases for the relevant misunderstanding. Mr Wall’s evidence established that the appellant had in fact made disclosures regarding its conduct, with no negative response being received on the first occasion.

3. [29]

   Her Honour next set out the effect of the evidence of Mr Mikosic, director of the appellant. This evidence demonstrated the appellant’s charitable endeavours in the local community. In this evidence, Mr Mikosic also offered a personal apology to the Court, as set out in her Honour’s judgment.

4. [30]

   Her Honour next referred to the purposes of sentencing contained in s 3A of the Sentencing Act. Her Honour noted that adequate punishment, specific and general deterrence, accountability for actions, denunciation and recognition of the harm done were particularly relevant to these offences.

5. [31]

   There was next the first emboldened heading of the judgment – “Objective circumstances.” Her Honour commenced this section of the judgment by stating “A number of matters are relevant to the consideration of the objective seriousness of the circumstances underpinning the offences under the EP&A Act, such as those identified in Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 at [14] (Preston CJ).”

6. [32]

   Under a subheading entitled “Nature of the Offences”, her Honour described the importance of upholding the statutory scheme for development control, and the objects of the EP&A Act as defined in s 1.3 of that Act. Her Honour found that the statutory purpose of promoting the orderly and economic use and development of land was particularly relevant in the case, quoting the judgment of Moore J in Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd (No 4) [2022] NSWLEC 32 at [83] in support of the importance of the integrity of the system not being subverted, irrespective of whether or not actual environmental harm is caused. Her Honour proceeded to emphasise the size of the relevant development site, operated for commercial purposes, and rejected the appellant’s submission that its failure did not circumvent the integrity of the planning system.

7. [33]

   Under the subheading “Maximum Penalty”, her Honour set out the maximum penalties, being $2 million for a corporation, as an expression by the NSW Parliament of the seriousness of the offences.

8. [34]

   Her Honour analysed, over a page and a half under the subheading ‘State of mind of the Defendant and reasons’, aspects of the evidence such as the actions in relation to both offences being unintentional, and Mr Wall’s evidence supporting his holding of a reasonable belief, in relation to offence 1, that what he was doing was carried out in accordance with the previous version of the development application.

9. [35]

   At [22] the sentencing judge noted the following as some of the bases of Mr Wall’s reasonable belief in respect of offence 1:

10. [36]

    Her Honour recorded the prosecutor’s submission that this belief was not reasonable, by referring to site maps in evidence to demonstrate that his understanding was not correct. Her Honour held that the guilty plea acknowledged that his understanding was incorrect; but that in circumstances where Mr Wall had not been cross-examined, accepted that his stated belief in relation to offence 1 was reasonable.

11. [37]

    In relation to offence 2, the sentencing judge recorded that Mr Wall understood the appellant was properly operating under an earlier modification (MOD 2), such that he believed that the importation of VENM was permissible at the time of the commission of the offence. Her Honour accepted his explanation.

12. [38]

    At [25] the sentencing judge stated:

13. [39]

    Under two final subheadings, her Honour acknowledged that there was no harm or likelihood of harm arising from either offence, but that the appellant had control over the causes of the offences.

14. [40]

    Her Honour then expressed her conclusion as to the objective seriousness of the offences, which was that the objective seriousness of offence 1 was at the low end of a low range of objective seriousness and the objective seriousness of offence 2 was at the low to mid range of a low range of objective seriousness.

15. [41]

    Her Honour next, under an emboldened heading “Application under s 10(1) [Sentencing Act]”, stated that the appellant had made such an application, and set out the terms of s 10 of the Sentencing Act. Her Honour acknowledged the need to consider all four factors in s 10(3), and noted there was no requirement to be satisfied of all four factors before exercising the discretion to make an order. Her Honour quoted authority as to the wide-ranging discretion involved.

16. [42]

    Her Honour recited the appellant’s submission that, if not trivial, offence 1 was of very low objective seriousness, continuing “It was the Defendant’s environmental consultants who amended the diagram depicting the general layout of the site appended to MOD 3 in such a manner that it rendered illegal what the Defendant had a reasonable belief was a continuing legal use. The Defendant accepted that less extenuating circumstances exist in relation to [offence] 2, as is the case.”

17. [43]

    At [36] her Honour forecast her finding at [56] of the remarks on sentence, based on the evidence of Mr Mikosic, that in terms of character and antecedents, the company is of good character.

18. [44]

    Her Honour expressed reluctance to impose the alternative option of a CRO. This is considered more closely in connection with ground 3.

19. [45]

    Her Honour stated at [38] of the sentencing judgment:

20. [46]

    As noted above in the agreed facts, “SSD” refers to a State Significant Development.

21. [47]

    At [40]-[57] of the sentencing judgment, under the heading “Subjective circumstances of the Defendant”, her Honour set out her assessment of various factors relevant to the appellant. This list of factors, corresponding with matters contained in s 21A(3) of the Sentencing Act, mirrored almost precisely the list relied upon on the appellant’s behalf, in almost the same order. The only factor left out was the offence not being part of a planned or organised activity (which, as noted above, is not a subjective feature).

22. [48]

    Her Honour’s findings regarding the s 21A(3) matters that had been the subject of submissions were not all as favourable as had been contended on the appellant’s behalf. For example her Honour addressed at [49]-[55] the issue of whether there had been relevant expression of contrition or remorse. Her Honour quoted part of the judgment of Preston CJ in Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [203]-[214] regarding four relevant demonstrations of remorse for offending of this kind. Her Honour noted the necessary qualification to those considerations in this case as no harm had been caused (to be remedied). Her Honour accepted that there had been demonstration of remorse in the apology issued, attendance at Court of senior officers, and disclosure in relation to offence 1. However her Honour stated:

23. [49]

    The absence of evidence on this issue was relatedly taken into account at [48] to find the likelihood of reoffending as “low but not negligible” such that “the amount of leniency afforded is consequently reduced”.

24. [50]

    At [58] her Honour noted her acceptance of the submission for the appellant that for both offences the proceedings could have been commenced in the Local Court. At [59]-[64] her Honour considered general and specific deterrence, retribution and consistency in sentencing, referring to two cases for comparison identified by the respondent. Contrary to the submission advanced for the appellant on appeal that her Honour at this point of the judgment found a moderated or reduced need for specific deterrence, her Honour expressly referred to the respondent’s submissions that specific deterrence was relevant where the appellant continued in the same area of operation in which the incidents occurred, and that there was no evidence of steps taken to avoid similar offences, concluding “In light of all the circumstances specific deterrence has some relevance for the Defendant.”

25. [51]

    Under the heading “Penalty Imposed”, at [67]-[69] her Honour referred to relevant case law such as the need to apply the instinctive synthesis approach identified in Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 (“Muldrock”) at [26], the Court there unanimously following Markarian v R (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) at [51] (McHugh J). Her Honour stated that the sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant, citing Veen v R (1979) 143 CLR 458 at 477, 490 (Jacobs J) and Veen v The Queen (No 2) (1988) 164 CLR 465 at 472-3 (Mason CJ, Brennan, Dawson and Toohey JJ) and 490-1 (Deane J). It was acknowledged that the sentence should not exceed what is “justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances”, citing Hoare v R (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

26. [52]

    Her Honour then stated the penalties to be imposed in light of the objective seriousness of the offence and the subjective factors outlined, reduced by the guilty plea and some allowance for totality.

27. [53]

    Finally, her Honour considered and determined applications by the respondent for a publication order under Part 8.3 of the POEO Act, a moiety under s 122(2) of the Fines Act, and costs pursuant to s 257B(a) of the Criminal Procedure Act 1986 (NSW). The publication order was stayed pending determination of this appeal.

Relevant legislation

1. [54]

   Section 10 of the Sentencing Act relevantly provides:

2. [55]

   Section 9 of the Sentencing Act relevantly provides:

3. [56]

   A CRO made under s 9 is subject to the sentencing procedures for CROs contained in Part 8 (ss 94—100) of the Sentencing Act. Section 98 provides that the sentencing court must impose the following standard conditions on a CRO:

4. [57]

   Section 99(1)(a) provides that the sentencing court may impose additional conditions on a CRO. The additional conditions available to be imposed are set out in s 99(2). Section 99(3) specifies certain kinds of conditions which must not be imposed on a CRO.

5. [58]

   Section 99A provides that a court may also impose further conditions on a CRO, unless such conditions would be inconsistent with the standard or additional conditions, or would not be permitted under s 99(3).

6. [59]

   Section 21A of the Sentencing Act provides in part:

Ground 1

1. [60]

   Ground 1 is that the sentencing judge erred in her consideration of whether a disposition pursuant to s 10 of the Sentencing Act was available by rejecting that as a sentencing option before considering the appropriate sentence.

2. [61]

   The appellant contended that there were three relevant notable features of her Honour’s sentencing judgment, two of which were directly relevant to the first ground of appeal. These were:

3. [62]

   It was submitted that the sentencing judge erred in her overall approach to sentencing the appellant by, in effect, engaging in a two-stage sentencing exercise. Her Honour was said to have done so by treating the appellant’s submission that it be dealt with in respect of either or both offences under s 10 of the Sentencing Act as an “application” and by considering the availability of a disposition pursuant to s 10 as a separate consideration, before considering all relevant sentencing considerations and determining the appropriate sentence. The structure of the judgment was said to demonstrate that consideration of the availability of orders to be made under s 10 was dealt with between her Honour’s assessment of the objective seriousness of the offending and her review of the subjective circumstances of the appellant. The failure to refer to instinctive synthesis until a point in the judgment after determining the s 10 “application” was submitted to be consistent with such an error.

4. [63]

   The result of this was said to be a limitation of the consideration of the suitability of s 10 to three factors; namely: there not being extenuating circumstances, the appellant’s good character and lack of previous convictions, and the objective seriousness of the offending. Her Honour was submitted to have therefore failed to have regard to other relevant considerations, including:

5. [64]

   The appellant identified the points in the sentencing judgment at which such findings were said to have been made by her Honour, but complained that they did not form part of her Honour’s consideration of utilising s 10 of the Sentencing Act.

6. [65]

   During the course of oral submissions it was further submitted that the fact that there was “no substantial harm caused” was also a relevant matter, because it bore on triviality, that was not taken into account. It was submitted that it was not taken into account because although it was an objective and relevant matter, it was addressed in the sentencing judgment in the section dealing with “subjective circumstances”, after having determined to not dispose of the case pursuant to s 10 of the Sentencing Act.

7. [66]

   In writing it was submitted for the respondent that the four matters identified in s 10(3) of the Sentencing Act that must be considered were identified at [32] of the sentencing judgment and were considered expressly at [33], [35], [36], incorporating [56] and [38]. It was contended that ground 1 failed to identify relevant error because it failed to identify expressly where the alleged submission was made and was rejected – because this did not occur.

8. [67]

   Regarding the six matters the appellant complained in its written submissions were relevant and not taken into account, as summarised above at [63], it was submitted for the respondent that such matters were not required to be considered in the context of s 10 of the Sentencing Act. That was submitted to be so because the matters that “must be considered” are the four that are identified in s 10(3), and her Honour expressly considered these. It was contended that those four matters do not require consideration of the six matters that the appellant relies on.

9. [68]

   During the course of oral submissions, Senior Counsel for the respondent utilised photographic exhibits to demonstrate the scale of the appellant’s lack of due diligence, relevant to her Honour’s findings.

10. [69]

    The respondent characterised the appellant’s complaint in ground 1, albeit not identified in the ground or submissions, as being that s 10 of the Sentencing Act has to be applied subject to s 21A of that Act. It was submitted that s 10 was not subject to s 21A.

11. [70]

    As the respondent correctly submitted regarding ground 1, the proper construction and interaction of ss 10 and 21A of the Sentencing Act was not identified in the notice of appeal. Resolution of this ground of appeal does not require an analysis of whether s 10 of the Sentencing Act has to be applied subject to s 21A of that Act. Rather, the ground concerns whether the sentencing judge engaged in an impermissible two-stage or two-tier process of sentencing, and whether her Honour failed to take into account relevant considerations. In neither respect is the ground made out. Further, as will be explained below, the factors in s 21A of the Sentencing Act may, but need not, be taken into account in determining whether to exercise the discretion pursuant to s 10 to not record a conviction.

12. [71]

    The sentencing judge did not undertake a two-stage process in either her determination to record a conviction or her determination of the sentences to impose. The description provided of such process by McHugh J in Markarian at [51], and his Honour’s articulation of the alternative, correct, process of instinctive synthesis is applicable:

13. [72]

    As noted by the sentencing judge, the High Court in Muldrock at [26] squarely endorsed the instinctive synthesis approach to sentencing so described by McHugh J in Markarian. This approach has been consistently applied by the High Court and this Court since that time. In The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 the High Court (Bell, Gageler, Keane, Nettle and Gordon JJ) explained at [18] that “Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type.” The Court at [19] described the consideration of a spectrum of seriousness, where the circumstances of an offence and offender did not demonstrate a case of the worst type, because “a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category, properly so called”.

14. [73]

    The sentencing judge explicitly took into account all the circumstances of the offences and offender, in accordance with the instinctive synthesis process, in determining the appropriate sentences to impose in this case. There is nothing to suggest the contrary. Her Honour at no point indicated a resolution of the dispute as to recording a conviction, nor determined the sentences that would be appropriate, having regard to only the objective features of the case.

15. [74]

    Her Honour did not state that she had taken all the circumstances of the offences and offender into account in resolving the dispute regarding the application of s 10. This however is a function of the terms of s 10 of the Sentencing Act and the way in which the case was argued before her Honour. It was not submitted for the appellant at first instance that all of the circumstances of the offences and offender required this case to be treated as the very least serious instance of offending within these offence provisions, such that no conviction should be recorded.

16. [75]

    Reading the judgment fairly and as a whole, it is not significant that the portion of the judgment dealing with s 10 came after the portion headed “Objective circumstances” and before the heading “Subjective circumstances of the Defendant.” Prior to explaining her determination to convict the appellant, her Honour had already set out all the evidence taken into account. This addressed both objective and subjective features of the case. Her Honour discussed at different parts of the judgment the significance of such evidence, and made value judgments accordingly.

17. [76]

    The reasoning under the heading “Objective circumstances” is the part of the judgment dealing with her Honour’s assessment of objective seriousness, which was highly important to resolve prior to dealing with the submission that convictions should not be recorded. All of the evidence establishing the objective circumstances had already been set out, as had the evidence of the subjective circumstances. That this section was concerned with making a determination about objective seriousness is consistent with her Honour commencing this section by stating “A number of matters are relevant to the consideration of the objective seriousness…” and ending with her Honour’s “Conclusion on objective seriousness of the circumstances of the offences.” It is not the case that the judgment refers to only objective circumstances before providing reasons for the decision to convict, and subjective features only afterwards.

18. [77]

    In determining to convict the appellant, her Honour took into account all the circumstances of the offences and offender that were required to be taken into account by s 10 of the Sentencing Act or relied upon by the parties. Unlike a two-stage process of sentencing, this was a mixture of subjective and objective features.

19. [78]

    In determining whether to convict the appellant, her Honour was not simply determining the point, on a spectrum of seriousness of sentencing options, which all the circumstances of the offence and offender warranted. Her Honour was addressing a more specific issue. Although resolution by use of s 10 of the Sentencing Act is a “sentence” within the definition in s 3 of the Sentencing Act, it is an idiosyncratic sentencing option. There is no requirement for the purposes of this case to place a gloss on the terms of s 10, nor a restriction on its availability; but the word “unique” used on the appellant’s behalf at first instance (as an outcome in the Land and Environment Court for offending of this kind) was not inapt. It is a particular, lenient, sentencing outcome. As stated in R v Mauger [2012] NSWCCA 51 at [18] (Harrison J, Beazley JA and McCallum J agreeing), s 10 reflects the willingness of the legislature and the community to provide offenders with an opportunity in certain circumstances to maintain a reputation of good character and to avoid the otherwise rigid application of inexorable laws.

20. [79]

    In Hoffenberg v District Court of NSW [2010] NSWCA 142 the Court of Appeal compared the provisions of s 4 of the Offenders Probation Act 1913-1953 (SA) with s 10 of the Sentencing Act. Basten JA explained at [8] the structure of s 10:

21. [80]

    His Honour further stated at [11]:

22. [81]

    Although these observations were provided as reasons additional to those given by McClellan CJ at CL for dismissing the appeal, and were not endorsed by either McClellan CJ at CL or Tobias JA, they offer a straightforward reminder of the structure of s 10.

23. [82]

    Sentencing judges in NSW are obliged to take into account mitigating factors that are “relevant and known to the court”: Sentencing Act, s 21A(1)(b). The factors identified in s 21A have been described as material and possibly mandatory considerations: Alenezi v R [2023] NSWCCA 283 at [24] (Basten AJA, Adamson JA and Sweeney J agreeing). However this Court has on numerous occasions held that whether error is established by a failure to have regard to a factor specified in s 21A is dependent upon the way in which the case was presented at first instance.

24. [83]

    In Meoli v R [2021] NSWCCA 213 there was complaint about a failure to assess the likelihood of re-offending, in circumstances where there was undoubtedly consideration given to the prospects of rehabilitation and the former was not the subject of submissions. Simpson AJA (with whom Bathurst CJ and Bellew J agreed) said:

25. [84]

    In the decision of Taylor v R [2018] NSWCCA 255 referred to, Wilson J at [51] described the undesirability of sentencing judgments being structured like checklists so as to avoid appeals based on some overlooked reference. Her Honour stated at [52] that the purposes of a Court in giving a sentence judgment “point to a requirement for transparency, but not for mere recitation of law and principle”.

26. [85]

    More recent examples of focusing attention on the issues raised for determination at first instance in deciding whether there has been a failure to take into account a circumstance nominated in s 21A of the Sentencing Act include Koosmen v R [2025] NSWCCA 122 at [109]-[120] (Yehia J with whom McHugh JA and Hamill J agreed) and Richardson v R [2025] NSWCCA 197 at [51]-[53] (Kirk and Free JJA, Rigg J).

27. [86]

    An analogous approach, and one which also reflects the obligations of the parties in adversarial proceedings, may be taken where a potential mitigating feature in s 21A(3) was not relied upon at first instance in support of a particular sentencing course, such as not recording a conviction. Regarding the seven matters that the appellant contended on appeal were relevant to determining whether a conviction should be recorded, but were submitted to have not been taken into account (see above at [63] and [65]), her Honour clearly did take into account the absence of harm, because it was expressly part of her Honour’s assessment of objective seriousness, which was central to the issue of whether to convict the appellant, as argued by the parties. Similarly the disclosure for offence 1 was an important part of the evidence relied upon by her Honour in accepting that the offending was unintentional and the mistaken belief reasonable. As noted earlier, her Honour did not make a finding that there was a moderated degree to which specific deterrence was relevant (and further, this is neither referred to in s 10 of the Sentencing Act nor was it the subject of submission as to why s 10 should be utilised).

28. [87]

    The other matters are not referred to in s 10 of the Sentencing Act as matters to be considered, and (with one possible exception) were not the subject of submission on the appellant’s behalf at first instance. As noted above, the only subjective aspect of the case relied upon by the appellant in arguing for disposition pursuant to s 10 was the absence of prior convictions. The possible exception is that one submission regarding the discount for the guilty pleas, as to a step down in sentencing options, may arguably be construed as having been included in submissions regarding s 10. However, in the circumstances of this case, there is no error in her Honour not having expressly taken the guilty plea into account in determining to convict the appellant.

29. [88]

    In the absence of any submissions before the sentencing judge that these other factors (remorse, availability of Local Court resolution and low likelihood of reoffending) were germane to the potential for disposition under s 10 of the Sentencing Act, her Honour did not err in not taking these factors into account in relation to the appellant’s submission that it should not be convicted. Her Honour not referring to these factors in this section of her judgment is of no legal significance in circumstances where no relevant submissions were made and the sentencing judge was not invited to take these matters into account on that issue.

30. [89]

    As noted earlier, the portion of the sentencing judgment headed “Subjective circumstances of the Defendant” was really addressing the appellant’s submissions as to the mitigating circumstances pursuant to s 21A(3) of the Sentencing Act that should be found and taken into consideration in sentencing generally. Her Honour’s judgment addressed almost precisely the submissions advanced, even to the extent of including reference to mitigating objective features (no substantial harm caused) under a heading said to relate to subjective features. In circumstances where good character (to which absence of prior convictions goes) is the only one of these which s 10 expressly provides for, and the lack of any submission that subjective features other than this warranted determination pursuant to s 10, her Honour was not in error in not including these matters in her discussion of whether s 10 should be utilised. Nor did her Honour err in placing the portion of the judgment dealing with s 10 before the portion dealing with s 21A(3) mitigating features.

31. [90]

    In relation to the issue of whether to dispose of the matter under s 10 of the Sentencing Act, her Honour referred to all the matters she was required to under s 10(3) and all the matters she had been addressed upon, these being a mixture of objective and subjective considerations.

32. [91]

    Given the breadth of the discretion afforded to a judge considering s 10 of the Sentencing Act, mitigating features contained in s 21A(3) may in an appropriate case come within the terms of s 10(3)(d) – “any other matter that the court thinks proper to consider”. It is not difficult to imagine a situation where profound remorse by an individual (human) offender may be thought proper to consider, with other matters, in determining that it is “inexpedient to inflict any punishment (other than nominal punishment) on the person.” It is not surprising, however, that the apology issued on behalf of a responsible corporate offender for the offending in this instance was not the subject of submissions in support of disposition under s 10, nor referred to by her Honour as a matter she independently regarded as proper to consider on that application, despite having already referred to the evidence of remorse, and later explaining its qualified impact as a mitigating factor for the purposes of s 21A(3), which had been the subject of submissions as to the penalty generally. Similarly, her Honour did not make a positive finding that the appellant was unlikely to reoffend. When her Honour had not been asked to take unlikelihood of reoffending into account in considering s 10, and her Honour qualified the role of future offending as a mitigating factor, it is again unsurprising that her Honour did not refer to it in the part of the judgment dealing with s 10.

33. [92]

    The availability of finalisation of the prosecution of these offences in the Local Court was referred to by the appellant at first instance only in connection with the amount of any fines to be imposed. Her Honour was not in error in not referring to this in the portion of her judgment dealing with s 10.

34. [93]

    In her Honour’s consideration of these proceedings, the determination that fines (of the order imposed, or at least generally) were the suitable sentencing outcome, and that convictions were required, were likely simultaneous processes. But the requirement to provide reasons meant that the two propositions had to be explained sequentially. There was no error in her Honour stating and explaining her rejection of s 10 as a sentencing option before stating her determination of the appropriate sentences.

35. [94]

    It would have been an orthodox way to structure the sentencing judgment to outline all the relevant objective and subjective features of the case and their importance to the sentencing exercise, relevant sentencing principles, arguments advanced on behalf of the parties, then identify the sentences found to be appropriate (including the reason for rejecting a submission of a party as to an alternative course). However it was not obligatory to do so. The Court is required to proceed on the understanding that there is no single correct sentence, and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Markarian at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ). Although, as outlined earlier, it was McHugh J’s articulation of the instinctive synthesis approach to sentencing which has been subsequently endorsed, this statement of principle by the majority in Markarian has been applied on countless occasions by this Court (albeit generally in considering a complaint of manifest excess or inadequacy).

36. [95]

    The flexibility accorded to sentencing judges means that the location within her Honour’s judgment of the resolution of the contention that no conviction should be recorded is not indicative of error, when her Honour has not been shown to have engaged in a two-stage sentencing process, nor failed to take into account relevant considerations.

37. [96]

    There is, further, nothing wrong with her Honour referring to the submission that s 10 should be utilised as an “application”. The submissions advanced for the appellant at first instance involved requesting a sentencing Court to consider a particular outcome, which was opposed by the respondent. The course here undertaken may be contrasted with a prosecutor improperly urging a particular sentence (in terms of the length of a sentence of imprisonment, or amount of a fine) upon a sentencing Court. The High Court in Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 (“Barbaro”) held that it is neither the role nor the duty of the prosecution to proffer a statement of the specific result which it considers should be reached or a statement of the bounds within which that result should fall. A prosecutor should not be permitted to make submissions as to the available range of sentences as such submissions are statements of opinion, not propositions of law or fact which a sentencing judge may properly take into account: at [7], [39], [43], [49] (per French CJ, Hayne, Kiefel and Bell JJ).

38. [97]

    In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46, the High Court confirmed the application of this prohibition in criminal proceedings (but excluded it from civil proceedings). French CJ, Kiefel, Bell, Nettle and Gordon JJ held that when imposing punishment in criminal proceedings, there is no room for a judge to take account of the Crown’s opinion as to an appropriate length of sentence. The plurality also explained that “…it was held in Barbaro that it is inconsistent with the nature of criminal sentencing proceedings for a sentencing judge to receive a submission from the Crown as to the appropriate sentence or even as to the available range of sentences”: at [56]. At [40] their Honours referred to the determination in CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9 at [63]-[64] that the prosecutor remains under a duty to assist the court to avoid appealable error where a sentencing judge indicates the form (as opposed to the duration) of a proposed sentencing order and the prosecutor considers it to be manifestly inadequate.

39. [98]

    Seeking resolution of criminal proceedings for a guilty offender by not recording a conviction is a particular sentencing course which requires articulation by (and response from) the parties. It was appropriate for the appellant at first instance to submit clearly that this particular sentencing option was sought, and the aspects of the evidence that warranted it, having regard to the terms of s 10 and relevant case law. In circumstances where that occurred, and her Honour resolved the issue by reference to the very factors that had been argued by the parties, it is not appropriate to now contend that her Honour should have only rejected s 10 as a sentencing option by explicit reference to all the circumstances of the offence and offender.

40. [99]

    In the judgment the subject of the appeal in R v Paris [2001] NSWCCA 83, the sentencing judge, at a point in the remarks on sentence earlier than where s 10 was discussed, had outlined matters related to the respondent’s character, antecedents, age, health and mental condition, “but did not clearly relate these to his views of s 10”: at [42]. In upholding the Crown appeal against sentence, part of the reasoning of this Court was that the sentencing judge in determining to utilise s 10 had only referred to the extenuating circumstances found to exist, not the other matters contained within s 10: Simpson J at [42], Ipp AJA and Wood CJ at CL agreeing. This underscores the importance of clearly addressing the factors in s 10(3), referable to the view formed as to the s 10 determination, not simply by reference to all the circumstances of the offence and offender. In some circumstances that may be appropriate, but it was not argued before her Honour that way in this case.

41. [100]

    Had her Honour not resolved the issue of whether to convict the appellant in the portion of the judgment dealing with s 10 of the Sentencing Act, but rather at the end of the judgment stated that taking into account all the circumstances of the offences and offender, and sentencing principles set out, she had determined to convict the appellant and impose fines of $56,000 and $42,500, her Honour may have been suggested to have provided inadequate reasons for not acceding to the course advanced on behalf of the appellant. In the portion of the judgment dealing with s 10 her Honour was merely providing reasons for not acceding to the course advanced on behalf of the appellant.

42. [101]

    Her Honour appropriately addressed s 10, by reference to factors relevant to the section and the submissions advanced, in the context of all the evidence. No error has been demonstrated in her Honour’s approach.

Ground 2

1. [102]

   Ground 2 is that the sentencing judge erred by applying a wrong principle in considering the extenuating circumstances in which the offences were committed.

2. [103]

   It was submitted that the appellant’s environmental consultant, without explanation, had amended the Project Layout of the quarry appended to MOD 3 which relevantly removed the previous reference to a “silt storage dam” to the west of the acoustic bund and included a new “approved extraction area” to the east of the acoustic bund. This was related to the basis of Mr Wall’s reasonable belief that the appellant’s actions the subject of offence 1 were lawfully permissible. As to offence 2, it was submitted that Mr Wall mistakenly but reasonably understood the MOD 2 conditions of consent applied to the quarry’s operations during the offence period.

3. [104]

   It was submitted that it was difficult to reconcile her Honour’s rejection of the submission that the circumstances of the offending were extenuating with her Honour’s earlier findings, referred to above, including: that the appellant’s actions were unintentional; that Mr Wall’s mistaken belief that the operation for offence 1 was being properly conducted under the MOD 2 conditions rather than the MOD 3 conditions was reasonable; Mr Wall’s not unreasonable understanding for offence 2 that the importation of VENM was permissible; and the fact that carrying out development at the quarry in accordance with the MOD 2 conditions of consent, as opposed to those under MOD 3, was contrary to the appellant’s commercial interests.

4. [105]

   A dictionary definition of “extenuate” as the rendering of fault or offence to seem less serious was quoted, and it was submitted that the ordinary meaning of the adjective “extenuating” was consistent with the sentencing judge’s findings in relation to the objective seriousness of the offending, summarised above. Her Honour’s reference to the due diligence with which quarrying activities should be carried out at a development that is State Significant was submitted to not logically explain this determination. It was also submitted to be difficult to understand how unintentional conduct, based on a reasonable belief as to legality, with no resultant harm, could undermine the EP&A Act’s development control system.

5. [106]

   The following contention was advanced:

6. [107]

   It was submitted that it was erroneous for her Honour to deprive the finding already made that the appellant’s actions were undertaken in extenuating circumstances of the characterisation of extenuating circumstances because this was a State Significant Development; or to find for that reason that “the extenuating circumstances weren’t extenuating.”

7. [108]

   In response to submissions advanced for the respondent, the appellant acknowledged that it would be plainly wrong to contend that a finding of extenuating circumstances would have led to successful disposition of the matter pursuant to s 10, and confirmed that this was not the appellant’s case.

8. [109]

   The respondent contended that although the appellant’s submissions concluded with an assertion of a “wrong principle” (see above at [106]), nowhere was the alleged wrong principle expressly identified, and the submissions advanced were merely exploration of a question of fact.

9. [110]

   It was further submitted that it was not at all difficult to see how a development that is carried out contrary to the conditions of a development consent can be said to undermine a regulatory system such as the development control system, when having regard to the factors in s 10(3)(b) and (d) of the Sentencing Act, citing Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, National Resources Access Regulator [2022] NSWCCA 9; (2022) 251 LGERA 28.

10. [111]

    Consistently with such authority, it was submitted to not only have been open to her Honour to conclude, but correct for her Honour to conclude, as quoted above at [45], that the circumstances of neither offence were extenuating, given the absence of the due diligence required for such a large operation.

11. [112]

    The respondent is correct in contending that no question of principle is identified in support of this ground. Rather, the appellant seeks to undermine a factual finding, without arguing that the finding was not reasonably open, nor any alternate way of framing such an attack utilised prior to the resolution of this issue in Hancock v R [2025] NSWCCA 213 at [73].

12. [113]

    This ground may be rejected on this basis. However I also accept the submission for the respondent that the undermining of the regulatory system found in the circumstances of this case meant that it was (reasonably) open for her Honour to make the finding that she did.

13. [114]

    It seems likely that her Honour treated the term “extenuating” as referring to a pressing reason or excuse for the objective criminality. The appellant’s submissions at first instance directed attention to the judgment of Howie J in High Range PCA Guideline at [131]. This paragraph made reference to extenuating circumstances this way:

14. [115]

    The factors the appellant contends were extenuating had already been given considerable emphasis by her Honour in assessing the objective seriousness of the offending at such a low level. There was not then an additional reason or excuse for that criminality (the lack of due diligence). A different sentencing judge may reasonably have described the circumstances relied upon as extenuating, but would have needed to acknowledge that such characterisation added nothing to the consideration of s 10, as they had already been taken into account in the assessment of the objective seriousness of the offending. For this same reason, even if there had been factual error, it could not have been material. The asserted error is only argued on the basis of favourable factual findings so clearly taken into account. Her Honour correctly acknowledged that there was no need to find the four factors in s 10(3) to exercise the relevant discretion.

15. [116]

    Ground 2 must accordingly also be dismissed.

Ground 3

1. [117]

   Ground 3 is that the sentencing judge erred by taking into account an irrelevant consideration, namely that an order pursuant to s 10(1)(b) of the Sentencing Act “is more appropriately made in the case of an individual defendant, as appears to be the usual practice”.

2. [118]

   The third of three notable features of the sentencing judgment relied upon by the appellant was the fact that at [37], immediately prior to declining to make the s 10(1) order sought, her Honour stated:

3. [119]

   It was submitted that her Honour’s reference to such an order being “more appropriately made in the case of an individual defendant, as appears to be the usual practice” was an irrelevant consideration, as it was equally, if not more, appropriate to make an order under s 10(1)(b) of the Sentencing Act in respect of a company as for an individual offender.

4. [120]

   It was submitted that, assuming the only conditions imposed were the mandatory standard conditions in s 98(2) of the Sentencing Act, a breach would involve committing a further offence dealt with by a Court, at which time the Court would be able to deal also with the breach.

5. [121]

   Reference was made to the desirability of a CRO as a sentencing option for corporate offenders having been articulated by law reform bodies. The appellant cited the NSW Law Reform Commission report Sentencing: corporate offenders (Report No 102, June 2003), which was said to have:

6. [122]

   It was submitted that in 2020 the Australian Law Reform Commission, in its report Corporate Criminal Responsibility (Report No 136, April 2020), observed that fines had been considered to be inadequate penalties for corporate offenders in light of a number of limitations. Limitations referred to included: innocent parties such as shareholders, employees and consumers bearing the cost of fines; the lack of a trigger for internal investigations, disciplinary action, and appropriate reform measures; the impression that offences may simply be a cost of doing business; and the suggestion that the level of monetary penalty required to sufficiently deter and punish misconduct will generally exceed the financial means of the corporation.

7. [123]

   It was submitted that, in line with the observations of these law reform bodies, there is a strong case for a CRO as a sentencing option for a corporation, to compel amendment of behaviour under the threat of potential future penalty. The written submissions for the appellant concluded:

8. [124]

   The respondent, relying upon the breadth of matters able to be encompassed by virtue of s 10(3)(d) of the Sentencing Act, submitted that ground 3 should fail unless the appellant demonstrated that the subject matter dealt with by her Honour in the impugned passage was one that her Honour was prohibited from considering, or even one that was not reasonably open to her Honour to think proper to consider.

9. [125]

   It was submitted to be uncontentious that the appellant had not referred to any case where a Court had made an order under s 10(1)(b) in relation to a company. Consideration of such a fact was submitted to be subject matter that was open to her Honour to consider under s 10(3)(d). The respondent contended that the phrase “I am reluctant to consider” did not indicate a refusal to consider, nor a mistaken understanding of a prohibition from considering. On the contrary, the content of the impugned passage was submitted to demonstrate that her Honour was considering whether or not to make one of the orders available to the appellant as set out in s 10(1) of the Sentencing Act.

10. [126]

    The words “more appropriately” were submitted to not mean “limited to”. Additionally, the phrase “more appropriately” was submitted to be apt to describe in summary form a number of relevant considerations such as the sound observation of Robson J in Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158 at [154] that the factors in s 10(3)(a) of the Sentencing Act are “primarily tailored towards an individual”. Her Honour’s observation in this respect was also submitted to fit comfortably within the terms of s 10(3)(d) which provides “any other matter that the court thinks proper to consider”.

11. [127]

    The submissions on appeal regarding the merits of a penalty option such as a CRO rather than a fine for a corporate offender were not advanced at first instance. The appellant very clearly submitted that a fine was the appropriate sentencing option if her Honour convicted the appellant. A CRO with a conviction was not advanced as an appropriate sentencing outcome.

12. [128]

    The prosecutor had not submitted that a disposition under s 10(1)(a) or (b) of the Sentencing Act was not legally available nor that it was inappropriate to make such an order in respect of a corporation – but submitted that it was not warranted on the facts of this case. Her Honour did not restrict the availability of s 10(1)(b) as a sentencing option to human offenders.

13. [129]

    The inapplicability of a number of the conditions that may be imposed pursuant to a CRO to assist to rehabilitate a person was not an irrelevant consideration. Further, her Honour had not found promotion of the appellant’s rehabilitation to be one of the purposes of sentencing of importance in the proceedings.

14. [130]

    As the appellant has failed to demonstrate that her Honour took into account irrelevant considerations, ground 3 must also be dismissed.

Conclusion

1. [131]

   For the above reasons the appeal must be dismissed.

Orders

1. [132]

   I propose the following orders:

   1. (1)

      Dismiss the appeal.