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

Medium Neutral Citation: CEAL Limited (Trading as Multiquip Quarries) v Secretary, Department of Planning, Housing and Infrastructure [2026] NSWCCA 20

Hearing dates: 5 September 2025

Date of orders: 9 March 2026

Decision date: 09 March 2026

Before: Payne JA at [1]
Weinstein J at [2]
Rigg J at [3]

Decision: Appeal dismissed

Catchwords: CRIME – Appeals – appeal against sentence – appellant company convicted of offences of carrying out development contrary to consent after guilty pleas and sentenced to fines in Land and Environment Court – whether sentencing judge erred by rejecting disposition under s 10 of Crimes (Sentencing Procedure) Act 1999 (NSW) as a sentencing option before considering appropriate sentence – whether sentencing judge engaged in impermissible two-stage process of sentencing or failed to take into account relevant considerations in determining not to record conviction – whether sentencing judge applied a wrong principle in considering extenuating circumstances in which offences were committed as required by s 10(3)(c) – no wrong principle identified – ground not properly framed to challenge a factual finding – factual finding as to extenuating circumstances nonetheless reasonably open – whether sentencing judge took into account irrelevant consideration being that s 10(1)(b) dispositions are more appropriate for individuals – sentencing judge did not restrict availability of s 10(1)(b) to individuals – inapplicability of certain conditions imposable under s 10(1)(b) orders to companies not irrelevant

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Protection of the Environment Operations Act 1997 (NSW)
Fines Act 1996 (NSW)
Offenders Probation Act 1913-1953 (SA)

Cases Cited: Alenezi v R [2023] NSWCCA 283
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
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, National Resources Access Regulator [2022] NSWCCA 9; (2022) 251 LGERA 28
CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9
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
Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi [2024] NSWLEC 139
Hancock v R [2025] NSWCCA 213
Hoare v R (1989) 167 CLR 348
Hoffenberg v District Court of NSW [2010] NSWCA 142
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Meoli v R [2021] NSWCCA 213
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
Richardson v R [2025] NSWCCA 197
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Mauger [2012] NSWCCA 51
R v Paris [2001] NSWCCA 83
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
Taylor v R [2018] NSWCCA 255
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
Veen v The Queen (No 2) (1988) 164 CLR 465

Category: Principal judgment

Parties: CEAL Limited (Trading as Multiquip Quarries) (Appellant)
Secretary, Department of Planning, Housing and Infrastructure (Respondent)

Representation: Counsel:
P English / J Fennel (Appellant)
C J Leggat SC (Respondent)
Solicitors:
Marsden Law Group (Appellant)
Department of Planning, Housing and Infrastructure (Respondent)

File Number(s): 2023/451490; 2023/451491

Publication restriction: N/A

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, CEAL Limited (Trading as Multiquip Quarries), was convicted following pleas of guilty to two offences of carrying out development not in accordance with the conditions of consent, contrary to s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW). The offences were prosecuted in the Land and Environment Court by the respondent, the Secretary of the Department of Planning, Housing and Infrastructure.

The appellant was sentenced to a fine of $56,000 for the first offence and a fine of $42,500 for the second offence. The sentencing judge made other orders in relation to costs, payment of a moiety and publication of the appellant’s offending.

The appellant appealed its sentence as of right, pursuant to s 5AA, read with s 5AB, of the Criminal Appeal Act 1912 (NSW), relying on the following grounds of appeal:

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

(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.”

The Court (Rigg J, Payne JA and Weinstein J agreeing) held, dismissing the appeal:

As to ground 1, the ground concerns whether the sentencing judge engaged in an impermissible two-stage process of sentencing and failed to take into account relevant considerations. The sentencing judge did not do so in either her determination to record a conviction or her determination of the sentences to impose: [70]-[71]. In the former, her Honour took into account the circumstances of the offences and offender required by s 10 of the Sentencing Act and relied upon by the parties. Unlike a two-stage process of sentencing, this was a mixture of subjective and objective features. Given it was not submitted at first instance that all the circumstances of the offences and offender were relevant to not recording a conviction, her Honour did not need to explicitly refer to them all: [77], [98]. In the latter, the sentencing judge explicitly took into account all the circumstances of the offences and offender, in accordance with the instinctive synthesis process: [73].

Markarian v R (2005) 228 CLR 357; [2005] HCA 25 applied. Muldrock v R (2011) 244 CLR 120; [2011] HCA 39; The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48; R v Mauger [2012] NSWCCA 51; Hoffenberg v District Court of NSW [2010] NSWCA 142; Alenezi v R [2023] NSWCCA 283; Meoli v R [2021] NSWCCA 213; Taylor v R [2018] NSWCCA 255; Richardson v R [2025] NSWCCA 197; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2; 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; CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9; R v Paris [2001] NSWCCA 83 referred to.

As to ground 2*,* the appellant identified no wrong principle in support of the ground but rather sought to undermine the factual finding as to extenuating circumstances without arguing it was not reasonably open, nor framing the attack in any way accepted prior to Hancock v R [2025] NSWCCA 213. The ground may be rejected on that basis. However it was reasonably open for her Honour to make the finding. Further, even if there was factual error, it could not have been material as the factors the appellant contended were extenuating had already been considered by her Honour in assessing objective seriousness: [113]-[114], [116].

Hancock v R [2025] NSWCCA 213, 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 referred to.

As to ground 3, the appellant failed to demonstrate that the sentencing judge took into account an irrelevant consideration. Her Honour did not restrict the availability of conditional release orders (“CROs”) under s 10(1)(b) of the Sentencing Act to individual offenders and the inapplicability of certain conditions imposable under CROs to corporate offenders was not an irrelevant consideration: [130]-[131].

JUDGMENT

1. PAYNE JA: I agree with Rigg J.

2. WEINSTEIN J: I agree with Rigg J.

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:

4. 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

5. 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”.

6. 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:

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

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

9. 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.

10. 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).

11. The appellant relies on the following grounds of appeal:

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

Circumstances of the offending and the offender

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:

4 The offences were carried out by the Defendant at Oallen Ford Road, Bungonia (Site). The Defendant is the owner of the Site, the person acting on the development consent, and authorises the procurement of services and the day to day works on the Site.

5 The Site is approximately 185 hectares in size and is being operated by the Defendant as a basalt rock and river sand quarry known as the ’Ardmore Park Quarry’. Workers at the quarry are employed by a related entity of the Defendant, Multiquip Aggregates Pty Ltd (Multiquip).

6 Project approval for the Ardmore Park Quarry was granted by the Minister for Planning under the former Part 3A of the EP&A Act on 20 September 2009. The Consent has been modified on three occasions:

8 October 2020 (MOD 1);

11 December 2013 (MOD 2); and

18 September 2020 (MOD 3).

7 On 18 January 2020, a delegate of the Minister declared development for the purpose of the Ardmore Park Quarry to be state significant development (SSD), with the consequence that Part 4 Div 4.7 of the EP&A Act applied to the development and the project approval is taken to be a development consent granted under that Part.

8 The parties agreed a statement of agreed facts set out in part as follows (annexures omitted):

First Offence (charge 1)

11 The Defendant, in carrying out development, did not comply with the Development Consent (MOD 3) in its use of silt cells 1, 2 and 3a and silt and oversize management areas 1 and 2 to the west of the acoustic bund, as such development was not generally in accordance with the project layout incorporated into the approval by reference to condition 2 of Schedule 2 of the Development Consent (MOD 3).

12 The areas where development was carried out not in accordance with the Development Consent (MOD 3) are shown to the west of the “vegetated bund wall” on the marked up aerial photograph which is at Annexure D.

13 Conditions 2 and 3 of Schedule 2 of the Development Consent (MOD 3) state:

2. The project may only be carried out:

(a) in compliance with the conditions of this approval;

(b) in accordance with all written directions of the Planning Secretary; and

(c) generally in accordance with the EA and the Project Layout in Appendix 1.

3. If there is any inconsistency between the above documents, the most recent document shall prevail to the extent of the inconsistency. However, the conditions of this approval shall prevail to the extent of any inconsistency.

14 The evidence of the first offence first came to the attention of authorised officer Katrina O’Reilly on 21 May 2021.

Second Offence (charge 2)

15 Between 22 September 2020 and 9 September 2023, the Defendant, in carrying out development, did not comply with Condition 37A of Schedule 3 to the Development Consent (MOD 3) in that it imported VENM to the Site when the Planning Secretary had not approved a Waste Management Plan for the Ardmore Park Quarry.

16 Condition 37A of Schedule 3 states:

37A. The Proponent must prepare a Waste Management Plan for the project in consultation with the EPA and to the satisfaction of the Planning Secretary. This plan must:

(a) identify the different types and quantities of screened waste material to be imported to site;

(b) describe:

(i) how and where screened waste material will be stored on site;

(ii) the process for handling screened waste material, including for use in rehabilitation, product blending and on-sell purposes;

(c) provide an indicative schedule of screened waste material to be imported to the site over the life of the project in order to achieve the conceptual final landform.

The Proponent must not import any screened waste material until the Waste Management Plan is approved by the Planning Secretary.

17 “Screened waste material” is defined in the Development Consent (MOD 3) as “VENM, ENM and treated drilling mud, as defined under the relevant Resource Recovery Orders and Exemptions”.

18 VENM is defined in cl 50 of Sch 1 to the Protection of the Environment Operations Act 1997 (NSW) as follows:

virgin excavated natural material means natural material (such as clay, gravel, sand, soil or rock fines)—

(a) that has been excavated or quarried from areas that are not contaminated with manufactured chemicals, or with process residues, as a result of industrial, commercial, mining or agricultural activities, and

(b) that does not contain any sulfidic ores or soils or any other waste,

and includes excavated natural material that meets such criteria for virgin excavated natural material as may be approved for the time being pursuant to an EPA Gazettal notice.

19 The evidence of the second offence first came to the attention of authorised officer Michael Wood upon receipt of a letter from the Defendant on 20 May 2022 in response to a Notice to Furnish Information and Records dated 11 April 2022.

20 In response to the Notice to Furnish Information and Records dated 11 April 2022, the Defendant supplied a VENM assessment report for the materials the subject of the second offence which described them as comprising “brown silty clay topsoil. No odour, staining, potential asbestos-containing material or other inclusions were observed”.

21 Between 22 September 2020 and 9 September 2021, the Defendant imported to the Site around 6,000 tonnes of VENM. At the time the VENM was imported to the Site, the Defendant had not prepared a Waste Management Plan.

9 The offence periods are between:

18 September 2020 and 20 April 2022 for the first offence; and

22 September 2020 and 9 September 2021 for the second offence.

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

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

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.

11. The submission was then advanced that:

“In summary, in light of the unique factual circumstances referred to at [4]-[7] above, the Defendant respectfully submits that the Court would find that both offences, even if not found to be trivial in nature, are of the lowest level of objective gravity, and that there are extenuating circumstance pertaining to each offence. Consequently, it is open to the Court to conclude that the appropriate sentencing disposition is for the offences to be dismissed (s l0(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act), or for the Defendant to be placed on a community release order (CRO) without recording a conviction (ss 9(1)(b), l0(1)(b) CSP Act).

Alternatively, noting the appropriateness of the Local Court’s sentencing jurisdiction to have dealt with these offences, the Court would convict the Defendant of one or both of the offences and order it to pay a modest fine(s).”

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.

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:

(a) the nature of the offending;

(b) the maximum penalty for the offence

(c) the state of mind of the offender in committing the offence;

(d) any harm caused or likely to be caused by the commission of the offence;

(e) the foreseeability of harm;

(f) the practical measures available to prevent or control that harm;

(g) the control over the causes of the offence;

(h) whether the offence was committed for financial gain.

These were each then addressed in turn.

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].”

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.

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.

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.

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.

“For each of these reasons, it is respectfully submitted that the Court would make orders either for: (a) the offences to be dismissed; or (b) the Defendant to be released by way of CRO under s 9(1)(b) of [the Sentencing Act] with standard conditions, without recording a conviction.”

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.

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

“The Prosecutor submits that a conviction and fine are warranted in the present case, having regard to the objective seriousness of the offence and the aggravating and mitigating factors outlined above. The offences are not trivial and nor were they committed in extenuating circumstances that would warrant a dismissal or conditional discharge under s10 of the Sentencing Act. A conviction alone pursuant to s10A of the Sentencing Act would not be sufficient to achieve the purposes of denouncing the Defendant’s conduct and deterring the Defendant or others from committing similar offences.”

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.”

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:

“First, we’ve got a first-time offender. It’s the lowest level of objective seriousness. There were extenuating circumstances regarding Mr Wall’s reasonable belief as to the applicability of Mod 2. And there’s no environmental harm whatsoever. So those factors make - and they’re expanded upon at 44 - those factors make this case somewhat unique.”

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.

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.

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

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.

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.

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.

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.

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).”

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.

“While MOD 3 was extant he believed that the Defendant was carrying out development in accordance with MOD 2 as it was yet to lodge and have approved its environmental management plans for MOD 3. Mr Wall also stated that MOD 1 and MOD 2 both referred to a ‘Silt Storage Dam’ in the same general area where the ‘Silt and Overburden Management Areas and Active Silt Cells’ the subject of charge 1 were situated and did not identify an ‘Approved Extraction Area’ which was introduced in MOD 3. In MOD 3 a ‘Water Storage Dam’ was shown in the location of the former ‘Silt Storage Dam’ and an ‘Approved Extraction Area’ was marked. The site layouts in MODs 1, 2 and 3 were prepared by a former employee of the Defendant’s environmental consultant and Mr Wall has been unable to contact that employee regarding the changes made in MOD 3 introducing the ‘Approved Extraction Area’.”

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.

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.

38. At [25] the sentencing judge stated:

“Mr Wall’s evidence that during the offence periods the Defendant operated the quarry generally in accordance with the conditions of MOD 2, including with lower extraction limits, more restrictive transport hours, and paying a higher rate of contributions pursuant to s 7.11 of the EP&A Act than were required under MOD 3 was not subject to cross-examination and further underlines that both offences were committed unintentionally.”

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.

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.

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.

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.”

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.

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

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

“Weighing up these various matters in the exercise of my discretion, I decline to make the s 10(1) orders sought in relation to either of the offences. While I have found the objective seriousness of both offences is low to very low the offences are not trivial. I do not consider the circumstances for either offence are extenuating. The conditions of development consent regulate this SSD, a large quarry, and that activity should be carried out with the necessary due diligence such a large operation entails.”

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

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).

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:

“One gap in the Defendant’s evidence relevant to remorse for both offences, which the Prosecutor identified, is that there is no evidence of what the Defendant intends to do or has implemented already to avoid a similar failure to understand the effect of any applicable development consent conditions in the future.”

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”.

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.”

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).

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.

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

54. Section 10 of the Sentencing Act relevantly provides:

10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders—

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),

...

(1A) A reference in any legislation (including this Act) to an order under this section includes, in the case of an order under subsection (1) (b), a reference to a conditional release order made under section 9 pursuant to that paragraph.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied—

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to discharge the person under a conditional release order.

…

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors—

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

…

55. Section 9 of the Sentencing Act relevantly provides:

9 Conditional release orders

(1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if—

(a) the court proceeds to conviction, or

(b) the court does not proceed to conviction but makes an order under section 10(1)(b).

(2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors—

(a) the person’s character, antecedents, age, health and mental condition,

(b) whether the offence is of a trivial nature,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

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:

(a) a condition that the offender must not commit any offence,

(b) a condition that the offender must appear before the court if called on to do so at any time during the term of the conditional release order.

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.

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).

59. Section 21A of the Sentencing Act provides in part:

21A Aggravating, mitigating and other factors in sentencing

(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters—

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

…

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b) the offence was not part of a planned or organised criminal activity,

…

(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character,

(g) the offender is unlikely to re-offend,

(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i) the remorse shown by the offender for the offence, but only if—

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),

(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m) assistance by the offender to law enforcement authorities (as provided by section 23),

…

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

…

Ground 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.

Appellant’s submissions

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:

“First, the sentencing judge described the submission made by the Appellant that it was appropriate for her Honour to deal with the Appellant under, alternately, ss 10(1)(a) or 10(1)(b) of the [Sentencing Act], as an ‘application’.

Secondly, the sentencing judge considered what she described as the Appellant’s ‘application’ under section 10 of the [S**entencing Act] after considering the objective seriousness of the offences but before considering subjective factors relating to the Appellant.”

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.

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:

(a) the appellant’s guilty pleas,

(b) the appellant’s likelihood of reoffending (‘low but not negligible’);

(c) the appellant’s genuine remorse;

(d) the assistance provided to the respondent in respect of Offence 1;

(e) the availability of Local Court prosecution; and

(f) the moderated degree to which specific deterrence was relevant.

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.

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.

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.

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.

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.

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.

Determination

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.

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:

“By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the ‘objective circumstances’ of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.”

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”.

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.

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.

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.

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.

“Section 10 is relevantly broken into three parts, the first conferring a power to make an order of a particular kind; the second prescribing that the order “may be made” if the court is satisfied of certain matters, although not stating that the court must be so satisfied to make such an order, and the third identifying factors which, in considering whether to make such an order, the court ‘is to have regard to’. While the logic of the new structure is apparent, its effect is obscured.”

80. His Honour further stated at [11]:

“Despite its form, s 10 should be understood as having the same general effect as s 4 of the South Australian Act. That is, it will not be expedient for the Court to release a person guilty of an offence without proceeding to conviction unless one or more of the factors set out in sub-s (3)(a), (b) or (c) is satisfied or there are other circumstances, not clearly fitting within those characteristics, which would justify such a course. Thus, a court now has a broader discretionary power than in the past; relevantly for the question of jurisdictional error, there is no statement of impermissible considerations.”

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.

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.

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:

“[40] The Crown’s response to the applicant’s argument was to point out that, in Zuffo [v R [2017] NSWCCA 187], the issue had been specifically raised by counsel but not addressed by the sentencing judge, and that there was no indication in TL [v R [2020] NSWCCA 265] that the question was raised for the first time on appeal. In the Crown’s submission there is no error in the absence of reference to a sentencing consideration that is not raised at the sentencing proceedings.

[41] That is this case: the sentencing judge was not asked to make a finding about the likelihood or unlikelihood of the applicant’s re-offending, and no such issue was raised before her. In the present application when this was raised, the applicant’s legal representative contended that it was not the role of legal representatives to raise issues for the determination of the judge and that it is the role of the judge to address relevant sentencing considerations. This was a somewhat surprising submission and one that, for my part, I reject.

[42] In my opinion the Crown submission should be accepted. It is not every one of the 14 mitigating factors listed in s 21A(3) that calls for a specific finding by the sentencing judge; it is those that arise in the circumstances of the particular case. Judges are called upon to decide issues that arise in the proceedings before them. In that respect the observations of Wilson J in Taylor v R [2018] NSWCCA 255 at [51]- [52] (in which White JA and Walton J concurred) are apposite.”

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”.

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).

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).

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.

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 , 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.

Ground 2

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.

Appellant’s submissions

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.

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.

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.

106. The following contention was advanced:

“That her Honour made findings consistent with the offending having been committed in extenuating circumstances, but provided a non-sequitur justification for not finding that the circumstances of the offending were in fact extenuating (seemingly based on the size of the Appellant’s development (SJ [19], [38])), reveals that her Honour misapprehended what is meant by ‘extenuating circumstances’ in s 10(3)(c). In so doing, her Honour fell into error by acting on a wrong principle.”

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.”

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.

Respondent’s submissions

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.

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.

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.

Determination

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].

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.

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:

“I recognise that there can be cases where there were such extenuating circumstances that a dismissal or a discharge under s 10 might be justified. It is impossible and inappropriate to delineate the situations in which an order under s 10 might be warranted notwithstanding the objective seriousness of the offence. One example might be where the driver becomes compelled by an urgent and unforseen circumstance to drive a motor vehicle, say, to take a person to hospital.”

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.

116. Ground 2 must accordingly also be dismissed.

Ground 3

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”.

Appellant’s submissions

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:

“While an application was made for the imposition of a conditional release order under s 10(1)(b) as an alternative, I am reluctant to consider its application for a company (accepted to be a person in the legal sense) noting that no case where this has occurred was provided by the Defendant. In Environment Protection Authority v Virotec International Ltd [2002] NSWLEC 110 at [36] Talbot J stated that it was (theoretically) ‘open for the Court to release the company on a good behaviour bond [former CRO] even though parts of ss 95 and 96 of the [Sentencing Act] [now partially contained in s 98] are referable only to non-corporate persons.’ No such order was made in that case. I consider such an order is more appropriately made in the case of an individual defendant, as appears to be usual practice.”

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.

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.

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:

“..stated its support for ‘the adoption of corporate probation as one of a number of sentencing options available to the courts for dealing effectively with corporate offenders.’ In so concluding, the NSWLRC recognised that the ‘primary aim of probation is rehabilitation of the offender to prevent further offending.’ Elsewhere in this report, the NSWLRC observed that releasing a company on a good behaviour bond ‘effectively requires the corporation to reform itself and in this way intrudes upon the corporation’s day to day operations.’” (footnotes omitted)

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.

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:

“In the present case, there was a strong argument for the making of a CRO under s 10(1)(b) in light of the low objective seriousness of the offending, complete absence of harm to the environment occasioned by the offending, the existence of extenuating circumstances, these being the Appellant’s first offences, and the need for an order that had an appropriate degree of deterrent value.

In so far as her Honour approached the sentencing task on a misapprehension that there was an impediment to making a CRO in respect of a corporation, which is consistent with her finding that such an order ‘was more appropriately made in the case of an individual defendant, as appears to be usual practice’, her Honour acted on a wrong principle.”

Respondent’s submissions

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.

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.

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”.

Determination

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.

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.

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.

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

Conclusion

131. For the above reasons the appeal must be dismissed.

Orders

132. I propose the following orders:

133. Dismiss the appeal.

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