Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis

Court of Criminal Appeal (NSW)|2019-10-11|Before: Brereton JA, Harrison J, Bellew J

The Queen (2014) 253 CLR 455; [2014] HCA 20 Lennard's Carrying Company Ltd v Asiatic Petroleum Company Ltd [1915] AC 705 Lovegrove v R [1961] Tas SR 106 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 McCullough v R (2009) 194 A Crim R 439; [2009] NSWCCA 94 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 Mouawad v Hills Shire Council (2013) 199 LGERA 28; [2013] NSWLEC 165 Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504 O'Neil-Shaw v The Queen [2010] NSWCCA 42 Pym v R [2014] NSWCCA 182 R v Barker [2016] NSWCCA 193 R v Bright [1916] 2 KB 441; [1916-17] All ER Rep 811 R v Chandler [2019] NSWCCA 250 R v Crump (NSWCCA, Mahoney JA, Hunt CJ at CL and Allen J, 30 May 1994, unreported) R v Fangaloka [2019] NSWCCA 173 R v Foo [1976] Crim LR 456 R v Harris [2015] NSWCCA 81 R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 R v Hooper [2004] NSWCCA 10 R v Hopoi [2014] NSWCCA 263 R v Hua [2002] NSWCCA 384 R v Huchison [1972] 1 WLR 398; [1972] 1 All ER 936 R v Hush, ex parte Devanny (1932) 48 CLR 487; [1932] HCA 64 R v Toomey [1964] Crim LR 419 R v Young [2003] NSWCCA 276 Rae v R [2019] NSWCCA 284 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 The Lady Gwendolen [1965] P 294 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Category: Principal judgment Parties: 2018/145824-145828, 2018/145882 Environment Protection Authority (appellant) Wollondilly Abattoirs Pty Limited (ACN 067 281 645) (respondent)

2018/145868-145869 Environment Protection Authority (appellant) Gregory John Davis (respondent) Representation: Counsel: Dr K Stern with Ms C Winnett (appellant) Mr C Carroll (respondent Wollondilly) Mr O'Gorman‑Hughes (respondent Davis)

Solicitors: Legal Branch, Environment Protection Authority (appellant) M J Law (respondent Wollondilly) Pikes & Verekers Lawyers (respondent Davis) File Number(s): 2018/145824; 2018/145825; 2018/145826; 2018/145827; 2018/145828; 2018/145882; 2018/145865; 2018/145866; 2018/1458672018/145868; 2018/145869 Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 5 Citation: [2019] NSWLEC 72 Date of Decision: 5 June 2019 Before: Pain J File Number(s): 2018/145824 2018/145825 2018/145826 2018/145827 2018/145828 2018/145882

Headnote [This headnote is not to be read as part of the decision] The respondent Wollondilly Abattoirs Pty Ltd was charged with six offences relating to supplying false or misleading information in a material respect under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). The general manager was charged with five offences, correlating with those against the company, by a special executive liability provision in the POEO Act. Both respondents pleaded guilty to all offences in the Land and Environment Court, were convicted, and ordered to pay costs. The company was convicted without further penalty, and the manager was fined a total of $12,000. The Environment Protection Authority (EPA) appeals to this Court against both respondents on grounds of manifest inadequacy. During the course of the trial, the primary judge rejected affidavit evidence of another employee on the grounds of the De Simoni principle. In relation to the respondent Wollondilly, the main issues on appeal were: (i) whether the sentencing judge erred in assessing the seriousness of the offences without reference to the state of the mind of the employees; and (ii) whether the sentencing judge erred in failing to find that each of the offences were committed knowingly and deliberately by the defendant referable to the state of mind of the key employees. In relation to the respondent general manager, the main issues on appeal were: (i) whether the sentencing judge erred in excluding the affidavit evidence on the basis of the De Simoni, or an analogous principle; and (ii) whether the Court should exercise its discretion to interfere with the sentence. The Court held (Brereton JA; Harrison and Bellew JJ agreeing) dismissing the appeal: (1) In the context of sentencing, the relevant consideration must be the criminal culpability of the corporation. The criminal blameworthiness will lie in failing to have in place adequate measures to supervise or control the activities of its officers and/or employees: at [22]. Section 169C of POEO Act does not attribute the individual's state of mind to the corporation; it does no more than make evidence of the state of mind of a relevant individual some evidence of the state of mind of the corporation. Where directors give evidence inconsistent with their having the alleged state of mind, the circumstance that one or two employees did have that state of mind will not prove that the corporation had that state of mind: at [33]. Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270; Cabonne Shire Council v Environmental Protection Authority (2001) 115 LGERA 304; [2001] NSWCCA 280 considered. (2) Maximum penalty and standard non-parole period (where there is one) are the legislative signposts for seriousness of offences. Their use as the exclusive indicator of relative seriousness is consistent with the underlying rationale of the principle that an offender should not be exposed on conviction for a lesser offence to sentencing for a greater offence: at [66]. R v Crump (NSWCCA, Mahoney JA, Hunt CJ at CL and Allen J, 30 May 1994, unreported); R v Hooper [2004] NSWCCA 10; Davies v R [2019] NSWCCA 45; R v Fangaloka [2019] NSWCCA 173; Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 considered. Sections 169 and 169B of the POEO Act have the same maximum penalty, and therefore the De Simoni principle does not arise: at [67]. Taking into account the offender's state of mind in sentencing for an offence does not involve punishing the offender for a matter extraneous to the offence, and therefore any analogous principle to De Simoni does not arise: at [75]. McCullough v R (2009) 194 A Crim R 439; [2009] NSWCCA 94; R v Young [2003] NSWCCA 276 considered. The sentencing judge erred in not admitting the evidence. (3) Despite errors in the sentencing process, there is not sufficient prospect that a substantially greater sentence would be imposed if the matter were remitted as to warrant that course; nor is the sentence so inadequate such as to require intervention: at [93].

Judgment

BRERETON JA: Wollondilly Abattoirs Pty Ltd (Wollondilly) operates an abattoir near Picton, in respect of which it holds an environment protection licence under Protection of the Environment Operations Act 1997 (NSW) (the POEO Act). At the relevant time, Gregory John Davis (Mr Davis) was its general manager, and Tiffany Ward (Ms Ward) its office manager; their employment had been terminated by the time of the hearing in the Court below.
The licence required Wollondilly to take an effluent quality sample from a particular effluent pond on its licensed premises once each quarter, have the samples analysed for particular pollutants in accordance with the Approved Methods for the Sampling and Analysis of Water Pollutants in New South Wales, and provide the results of analysis to the Environment Protection Authority (EPA) in quarterly reports and in its annual return. It also required Wollondilly to take three annual surface soil samples and three annual subsurface soil samples from the main effluent irrigation area on its Premises, have the samples analysed for particular pollutants in accordance with the licence, and provide the results of analysis to the EPA in the next quarterly report and in its annual return.
Wollondilly's quarterly reports submitted on or about 11 May 2017 (for the January 2017 quarter, and for the April 2017 quarter), on or about 20 July 2017 (for the July 2017 quarter), and on or about 24 October 2017 (for the October 2017 quarter), contained information that was false or misleading - in particular, by including a false certificate of analysis containing false results for the samples, which purported to have been created by "ALS Environmental" (a trading name of Australian Laboratory Services Pty Ltd (ALS)), whereas the certificates had not been created by or on behalf of ALS. Wollondilly's annual return submitted on or about 30 November 2017 (for the year to September 2017) contained information that was false or misleading, in that it included false monitoring data for the effluent samples, surface soil samples and subsurface soil samples; falsely stated that the number of effluent samples required to be tested for pH and Conductivity was nil; failed to report under "Details of Non-Compliance with Licence" any breaches of condition M2 of its environment protection licence; and contained an inaccuracy in relation to dates of non-compliances with the provision of quarterly reports. In the course of investigating those matters, EPA gave Wollondilly a notice, under s 193 of the POEO Act, requiring it to provide information and records in relation to the suspected failure to monitor pollutants as required by the licence and the suspected provision of false information in the quarterly reports. Wollondilly provided a response to that notice which included false information, falsified invoices and falsified bank records.
Wollondilly was charged with the following six offences: 1. an offence under s 66(2) of the POEO Act as the holder of a licence who supplied information to the EPA under the conditions of the licence, being information that was false or misleading in a material respect. On or about 11 May 2017, Wollondilly Abattoirs provided the EPA with a quarterly report which was required to be submitted by 10 January 2017 pursuant to condition R4.1 of its licence and that report contained false or misleading information (2018/145824); 2. an offence under s 66(2) of the POEO Act as the holder of a licence who supplied information to the EPA under the conditions of the licence, being information that was false or misleading in a material respect. On or about 11 May 2017, Wollondilly Abattoirs provided the EPA with a quarterly report which was required to be submitted by 20 April 2017 pursuant to condition R4.1 of its licence and that report contained false or misleading information (2018/145826); 3. an offence under s 66(2) of the POEO Act as the holder of a licence who supplied information to the EPA under the conditions of the licence, being information that was false or misleading in a material respect. On or about 20 July 2017, Wollondilly Abattoirs provided the EPA with a quarterly report which was required to be submitted by 20 July 2017 pursuant to condition R4.1 of its licence and that report contained false or misleading information (2018/145825); 4. an offence under s 66(2) of the POEO Act as the holder of a licence who supplied information to the EPA under the conditions of the licence, being information that was false or misleading in a material respect. On or about 24 October 2017, Wollondilly Abattoirs provided the EPA with a quarterly report which was required to be submitted by 20 October 2017 pursuant to condition R4.1 of its licence and that report contained false or misleading information (2018/145828); 5. an offence under s 66(2) of the POEO Act as the holder of a licence who supplied information to the EPA under the conditions of the licence, being information that was false or misleading in a material respect. On or about 30 November 2017, Wollondilly Abattoirs provided the EPA with its Annual Return for the reporting period 1 October 2016 to 30 September 2017 which was required to be submitted by 29 November 2017 pursuant to condition R1.1 of its licence and the Annual Return contained false or misleading information (2018/145827); and 6. an offence under s 211(2) of the POEO Act of furnishing information to the EPA in purported compliance with a notice to provide information and records issued under s 193 of the POEO Act, knowing that it was false or misleading in a material respect (2018/145882).
Mr Davis was charged with five offences against s 66(2) of the POEO Act by reason of s 169(1) of that Act, in that at the time when Wollondilly committed each of the offences referred to in (1) through (5) above, he was a person concerned in the management of Wollondilly, as its general manager.
Wollondilly pleaded guilty to the five charges under s 66(2), and also to the charge under s 211(2). On 5 June 2019, following a four day hearing between 11 and 14 March 2019, Pain J convicted the company of each of the six offences, without further penalty, pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A, and (by agreement) ordered that the company pay the EPA's costs in the amount of $40,000. [1] Mr Davis pleaded guilty to the five charges against him. On 11 June 2019, Pain J convicted him of each of the five offences, imposed a fine of $10,000 on the first and $500 on each of the others - a total of $12,000 - and (by agreement) ordered that he pay the EPA's costs in the amount of $40,000. [2]
The EPA appeals, pursuant to Criminal Appeal Act 1912 (NSW) s 5D(1A), to this Court from the sentences in both matters. Section 5D(1A) gives the EPA an appeal, as of right, against the sentences: (1A) The Environment Protection Authority may appeal to the Court of Criminal Appeal against any sentence pronounced by the Supreme Court or the Land and Environment Court in any proceedings for an environmental offence (otherwise than on an appeal), if those proceedings have been instituted or carried on by, or on behalf of, the Environment Protection Authority. The Court of Criminal Appeal may impose such sentence as to it may seem proper.
The principles relating to Crown appeals against inadequacy in sentencing have been stated in the context of appeals by the Crown under s 5D. However, there is no reason why the same principles should not inform an appeal by the EPA under s 5D(1A), which is analogous. Thus, to sustain a claim of manifest inadequacy requires the EPA to establish that the sentence imposed was unreasonable or plainly unjust, in an environment where 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. [3] A claim of manifest inadequacy is a conclusion, which does not depend on the establishment of specific error. [4] Where there is in substance but one ground of appeal - namely, manifest inadequacy - identification of specific error is not required; however, identification of specific error may assist to explain why a sentence is manifestly inadequate. [5]
The principles relevant to Crown appeals have been helpfully summarised by Hoeben CJ at CL in R v Barker, [6] as follows: 52 Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a "limiting purpose" for such appeals and, by contrast with the Court's jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is "plainly unjust" by reason of its manifest inadequacy) for the mere "correction of error in the individual sentencing proceedings" - Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8). 53 Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is "plainly unjust") the Crown must: (i) Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]); (ii) Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]); (iii) Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed). … 55 Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is "plainly unjust" and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R.
Before the sentencing judge the cases against Wollondilly and against Mr Davis were heard concurrently, but evidence in one was not evidence in the other, and as a result there were important differences in the facts on which each was sentenced.

The Wollondilly appeal

In the case against Wollondilly (but not in the case against Mr Davis), there were agreed facts that: 1. Ms Ward created at least two of the false ALS reports (being those contained in the January 2017 quarterly report and the April 2017 quarterly report) that are the subject of the charges, at Mr Davis's direction, by creating a Microsoft Word document, and scanning in the ALS Environmental logo from a genuine (earlier) ALS report. 2. Mr Davis directed Ms Ward to prepare the first false ALS reports, because Mr Davis had not done the required effluent sampling and analysis. 3. It was more likely than not that Ms Ward and/or Mr Davis created the false ALS reports contained in the July 2017 quarterly report and the October 2017 quarterly report. 4. Mr Davis authorised Ms Ward to log in to his account to complete the Annual Return online. Ms Ward entered the information in the Annual Return, then printed it out and asked Mr Davis to have a look at it. Mr Davis looked at it and said it was "all good". 5. On 10 November 2017, the EPA received Wollondilly's initial response to the s 193 notice, which was signed by Mr Davis. Ms Ward and Mr Davis prepared the s 193 response together. 6. On 11 January 2018, the EPA received by Express Post from Wollondilly a further response to the s 193 notice, consisting of four purported invoices from ALS to Wollondilly over the relevant period and three purported National Australia Bank direct credit reports for Wollondilly's bank account. The invoices and the direct credit reports were falsified. 7. It is more likely than not that Ms Ward and/or Mr Davis created the false invoices and the false credit reports.
The grounds of appeal were: 1. Having regard to the terms of s 169C(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), the sentencing judge erred in assessing the seriousness of the offences only by reference to the state of mind of the directors of the defendant and not also by reference to the state of mind of the defendant's employees, Mr Davis and Ms Ward (Judgment [2019] NSWLEC 72 (Judgment) at [41], [45] and [61]). 2. In the circumstances, having regard to the terms of s 169C(1) of the POEO Act and to the evidence as to the state of mind of Mr Davis and Ms Ward, the sentencing judge erred in failing to find that each of the offences was committed knowingly and deliberately by the defendant. 3. The sentence imposed by the sentencing judge was manifestly inadequate by reason of the matters set out in grounds 1 to 2 above (Judgment at [79]). 4. The sentencing judge erred in disposing of each of the offences by convicting the defendant without imposing any other penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Judgment at [79]).
However, EPA eschewed any submission that the penalty was manifestly inadequate independently of the errors referred to in grounds (1) and (2). In particular, although it appears anomalous that, having pleaded guilty to an offence under s 211 of furnishing information knowing that it was false or misleading in a material respect, the company was sentenced on the footing that its criminal responsibility was not exacerbated by any element of intention, recklessness or negligence, no ground of appeal challenged that. The responsible approach was taken that on a prosecutor's appeal, the real concern was with questions of principle, and in this respect the issue of principle pertained to the role of s 169C. The Court should respect that exercise of prosecutorial discretion, and not embark on a wider inquiry.
It follows that the essential question is that raised by ground 1. It was EPA's contention that the sentencing judge erred in evaluating the objective seriousness of the offences only by reference to the state of mind of the directors, and not also by reference to the state of mind of the employees Mr Davis and Ms Ward, and that, properly applying s 169C, her Honour ought to have concluded that the offences were conducted by the company knowingly and deliberately.
Section 169C - which appears in Part 5.9 of the POEO Act dealing with "General Offences", alongside provisions concerning special executive liability, executive liability and accessorial liability - provides as follows: 169C Evidence as to state of mind of corporation (1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind. (2) In this section, the state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person, and (b) the person's reasons for the intention, opinion, belief or purpose.
The sentencing judge recorded the submissions of the prosecutor: 39 The EPA submitted that although there was no evidence that the board of directors of Wollondilly Abattoirs directed the then general manager and the then office manager to take the actions that they did, they were reckless with regard to whether or not the information supplied to the EPA was false or misleading. The then office manager was at all relevant times an employee of the company and knowingly and deliberately falsified the ALS reports. Applying s 169C of the POEO Act concerning evidence of the state of mind of a corporation, it is open to the Court to find that the offences were deliberately committed by Wollondilly Abattoirs. The company engaged in the conduct without regard to its legal obligations over a substantial period. When further information was sought by way of the s 193 notice the company attempted to cover up its actions by providing further false information. The board of directors of the company showed a disregard for their legal obligations by not properly informing themselves of the requirements attaching to the EPL in the first place.
And those of the respondent: 40 Wollondilly Abattoirs submitted that its directors were unaware of the misconduct of the then general manager and the then office manager until these matters were investigated by the EPA. Section 169C does not apply in the manner contended for by the EPA because a corporate body cannot both know something and be unaware of it at the same time.
Her Honour dealt with this issue as follows: 41 Under s 169C the state of mind of a potentially wide number of people can be attributed to a company. I agree with Wollondilly Abattoirs that the company's state of mind should be gauged by reference to its directors as its officers in this case, as s 169C enables. I accept the directors' submissions that they were unaware of the provision of false information in relation to all the offences at the time that occurred. That lack of knowledge arose in their capacity as directors. The completely opposite state of mind of an employee carrying out fraudulent activity is arguably not knowledge gained while acting in their capacity as an employee, being outside any reasonable scope of employment.
Her Honour thus accepted that in the circumstances of the case, the company's criminal responsibility fell to be ascertained according to the state of mind of the directors. This is consistent with the traditional view that the usual rule of attribution is that an officer or agent's state of knowledge may be attributed to a corporation where the agent was so centrally concerned with the corporation's operations as to be considered its "directing mind or will". [7] Typically, a corporation's directing mind and will is its board of directors.
However, that is not a universal rule. Lennard's Carrying Company Ltd v Asiatic Petroleum Company Ltd did not establish that a person whose acts or omissions or state of mind are to count as those of the corporation must always be its directing mind and will, and it is necessary to identify, in each case, the relevant rule of attribution. [8] In many cases, the conduct of persons in actual control of particular operations of the company will constitute the company for particular statutory purposes. [9] However, this will vary according to the specific context, and the rule to be applied when a court is considering vicarious liability for a tort committed by a person associated with a corporation will not be the same as the rule applicable to establish criminal liability of a corporation for the conduct of a person. [10]
In Director General, Department of Education and Training v MT, Spigelman CJ referred with approval to Lord Hoffmann's judgment in the Meridian Global Funds Management case: [11] 20 When considering the applicability of a criminal statute, Lord Hoffmann said at 507: "One possibility is that the court may come to the conclusion that the rule was not intended to apply to companies at all; for example, a law which created an offence for which the only penalty was community service. Another possibility is that the court might interpret the law as meaning that it could apply to a company only on the basis of its primary rules of attribution, i.e. if the act giving rise to liability was specifically authorised by a resolution of the board or an unanimous agreement of the shareholders. But there will be many cases in which neither of these solutions is satisfactory; in which the court considers that the law was intended to apply to companies and that, although it excludes ordinary vicarious liability, insistence on the primary rules of attribution would in practice defeat that intention. In such a case, the court must fashion a special rule of attribution for the particular substantive rule. This is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc. of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy."
His Honour also referred, with approval, to the judgment of Callaway JA in Director of Public Prosecutions Reference No 1 of 1996: [12] 24 Callaway JA also identified a number of principles which are inherent in Lord Hoffmann's judgment and which it is convenient to set out, omitting matters pertinent only to the case under consideration by the Victorian Court of Appeal. His Honour said at 354-355: "1 The first step is to decide whether a corporation aggregate … is capable of committing the offence in question … The next step is to decide whose acts or omissions or state of mind are, for the purpose of the relevant offence, to count as the acts or omissions or state of mind of the corporation … 2 The search is not for the officers, employers, or agents for whose acts or omissions the corporation might be held liable in a civil action. The question is whose acts or omissions or state of mind are taken to be the acts or omissions or state of mind of the corporation itself for the purpose at hand. The liability is direct, not vicarious … 3 … Leonards Carrying Co Limited v Asiatic Petroleum Co Limited [1915] AC 705 … did not establish that a person whose acts or omissions or state of mind are to count as those of the corporation must always be its directing mind and will, even for the purpose of excluding 'actual fault or privity'. … 4 Sometimes only the board of directors acting as such or a person at or near the top of a corporation's organisation will be identified with the corporation itself. On other occasions, someone lower, and perhaps much lower, in the hierarchy will suffice … The criminal negligence of the lorry driver employed by a corporation will not make it guilty of manslaughter but it is not inconceivable that his or her failure to comply with some regulatory requirement could make it liable, directly and not vicariously, for non-compliance with the relevant regulations. 5 The rule of attribution depends on the offence and on the facts of the case … 6 In at least some cases involving a criminally negligent omission to take due care a corporation may face the dilemma … either there was or were a person or persons in the corporation's organisation whose function it was to take care in the relevant respect, in which case that person or those persons may be identified with it, or the corporation was at fault because its organisation was inadequate. In referring to a person or persons I do not intend to convey that there can be aggregation as opposed to joint or collective responsibility …"
These authorities, however, are concerned with criminal liability in the context of whether or not the company has committed an offence, rather than with sentencing. In the context of sentencing, one relevant consideration must be the criminal culpability of the corporation, bearing in mind that the penalty (at least, where it is a fine) will be borne, ultimately, by the shareholders - not the directors and certainly not the employees, however senior and however implicated in the offending they may be. Of course, directors or employees might be liable - as Mr Davis was here - as accessories. But often, the criminal blameworthiness of the corporation will lie in failing to have in place adequate measures to supervise or control the activities of its officers and/or employees.
In any event, the appellant did not contend that the state of mind of Mr Davis was attributable to Wollondilly on the basis that, apart from the effect of s 169C, his state of mind was to count as that of the company. The argument was confined to the operation and effect of s 169C.
Although, before us, it was submitted that s 169C had limited if any operation in sentencing proceedings as distinct from in proceedings to determine liability, there is no basis for depriving it of operation in sentencing proceedings. However, its relevance and importance is diminished, since once criminal liability is established, on sentencing what is required is a broad evaluation of the criminal culpability of the company, not confined to questions of actual intention, recklessness or criminal negligence, but having regard to the circumstance that those who ultimately bear the burden of any penalty are the shareholders. The distinction between the culpability in this sense (that is to say, for the purpose of sentencing for an offence of strict liability) of the relevant employee, and that of the corporation, was adverted by Giles JA in Cabonne Shire Council v Environmental Protection Authority, as follows: [13] 28 Although it was not a ground of appeal in its own right, the appellant submitted there was error in so far as his Honour took into consideration as a matter of significance what he referred to in par 21 as "the fact that the offence was committed intentionally." 29 By this his Honour seems to have taken up what he said in the first two sentences of par 18, that the events of 1 September 1999 were not the result of an accident and Mr Whiley's actions were deliberate. The person charged with the offence was the appellant, not Mr Whiley. It would be material to consider the education and instruction given to Mr Whiley and the procedures put in place by the appellant in order to guard against disposal of septic waste other than in a proper manner. That Mr Whiley's actions were deliberate would, however, be a consequence of deficiencies in these respects, material because reflecting on the appellant but not itself a matter counting against the appellant in arriving at the penalty to be imposed. To illustrate the point, if an employer had done everything it could possibly have done to guard against an employee wrongly disposing of polluting matter, it could hardly be held against the employer that the employee, for reasons of his own, deliberately did so. 30 In the present case, when Mr Whiley was a reliable employee, when he had been instructed that septic waste was to be deposited in the authorised septic disposal pits, when there was no evidence of a prior incident, and when Mr Whiley's conduct was found to have been utterly out of character, what was the significance of the fact that Mr Whiley's actions were deliberate? It meant that he disposed of the septic waste at the Cargo landfill site intentionally, as distinct from its escaping because of a malfunction of the tanker or some other event which could be categorised as an accident. It was material so far as the appellant's education and instruction may have been deficient in impressing on Mr Whiley that he must not act in such a way. Perhaps his Honour had that in mind in par 19 of his reasons, but he appears to have misled himself by translating it in par 21 to "the fact the offence was committed intentionally." It is quite clear that the offender, that is, the appellant, did not commit the offence intentionally.
Where there is an explicit attribution provision, its terms provide the starting point for determining whether an employee's state of mind is to be attributed to the corporation. [14] EPA submitted that: 1. Section 169C operated to attribute a state of mind held by an employee to a corporation in circumstances where the employee possessed the relevant state of mind while acting in his or her capacity as such, and that if Mr Davis and/or Ms Ward held the relevant state of mind (that is, intentionally to supply information that was misleading in a material respect), then that state of mind had to be attributed to the company. 2. Contrary to [41] of the judge's reasons, s 169C did not enable the Court to choose to gauge the company's state of mind by reference to the directors to the exclusion of the employees where there are differences between the discrete groups or individuals mentioned in the section. 3. To the extent that the judge reasoned that "completely opposite state of mind of an employee carrying out fraudulent activity is arguably not knowledge gained while acting in their capacity as an employee, being outside any reasonable scope of employment", that was inconsistent with the terms of s 169C and with the context and purpose of the provision.
I am content to accept that it would have been erroneous to disregard the state of mind of the employees on the basis that, in engaging in fraudulent activity, they were acting outside any reasonable scope of employment. The operation of s 169C is conditioned on the employee acting "in his or her capacity as such", and not on whether the activity was within the scope of the employee's authority. However, her Honour did not dispose of the matter on that basis, observing only that it was "arguably" the case.
In interpreting s 169C, in its context and having regard to its purpose, the starting point is its express terms. In this respect, the opening phrase of subsection (1) "Without limiting any other law or practice regarding the admissibility of evidence" characterises the provision as one relating to the admissibility of evidence. The operative words make "evidence" of the state of mind of particular individuals "evidence" of the state of mind of the corporation.
In Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide, [15] Wells J, dealing with a statutory provision that the mere production of a paper purporting to be printed by the Government Printer or by the authority of the Government of the State shall in all courts be evidence that the paper was printed by the Government Printer or by such authority, [16] said: [17] There is, however, no reason that I can discover why the section should not be given its natural meaning. "Evidence" means "some evidence"; it does not mean "proof", or "incontrovertible proof", or "conclusive evidence". The section was plainly designed, in my judgment, to facilitate proof of due publication whenever, as is generally the case, such proof is not disputed. In this case, due publication was disputed and evidence was led on the issue. In these circumstances, s. 37b cannot overturn the effect of the positive evidence which I have accepted. Such a conclusion would, in my opinion, follow even if s. 37b had provided that the mere production would be prima facie proof of publication: Merrall v. Samuels [(1971) 2 SASR 378], especially at pages 382 and 383.
A similar approach has been adopted in respect of provisions which make averments in information evidence of their truth. In R v Hush, ex parte Devanny, Dixon J wrote: [18] Sec. 30R (1) of the Crimes Act provides that in a prosecution of the present description the averments of the prosecutor contained in the information shall be prima facie evidence of the matter averred. It is to be noticed that this provision, which occurs in a carefully drawn section, does not place upon the accused the onus of disproving the facts upon which his guilt depends but, while leaving the prosecutor the onus, initial and final, of establishing the ingredients of the offence beyond reasonable doubt, provides, in effect, that the allegations of the prosecutor shall be sufficient in law to discharge that onus.
In Ex parte Ryan; Re Johnson, [19] Regulation 32A of the National Security (Prices) Regulations 1940 (Cth) provided that in any prosecution for a contravention of those regulations, the averment of the prosecutor contained in the information or complaint shall be prima facie evidence of the matter or matters averred. Jordan CJ (with whom Maxwell and Roper JJ concurred), said: It has been pointed out that the effect of the regulation is not to shift the onus of proof but to provide what may be sufficient to discharge it: R. v. Hush [(1932) 48 CLR 487 at 507-8; 8 Austn Digest 456], with the result that the position of the prosecutor is similar to that of an executor propounding a will. The executor supplies prima facie evidence of testamentary capacity and intention by proving execution, but if evidence is elicited or given on those issues, the burden of proof is on him to establish them. But although in a technical sense the regulation does not affect the onus of proof, in a practical sense it affects it very vitally, because it enables the prosecutor to make out a prima facie case by material which has no real evidentiary value, thus throwing on the accused the burden of producing real evidence sufficient at least to raise a doubt in the magistrate's mind.
In view of this well-established approach to provisions which make something merely "evidence" (as distinct from "conclusive evidence") of something else, there is no reason to think that s 169C was intended to have any more extensive operation. This is fortified by contrasting s 169C with the "deeming" provision found in Competition and Consumer Act 2010 (Cth) s 84, which was the subject of Commonwealth Bank of Australia v Kojic, [20] and which provides that where "it is necessary to establish the state of mind of the body corporate, it is sufficient to show that" the relevant officer who engaged in the conduct in the scope of his or her authority had that state of mind.
Section 169C does no more than make evidence of the state of mind of a relevant individual some evidence of the state of mind of the corporation; it does not attribute the individual's state of mind to the corporation. It is an evidentiary provision, in the sense that it provides for means, additional to other means, by which the state of mind of a corporation may be proved. It is not a conclusive evidence provision. It does not deem the state of mind of the relevant individual to be the state of mind of the company. Typically of such evidentiary provisions, it facilitates proof, especially where the question is not put in issue, but it does not alter what must ultimately be proved. It facilitates proof of a corporation's state of mind, in that if the only evidence adduced is that of the state of mind of a relevant individual, that will be sufficient evidence to discharge the prosecutor's onus of proof. But where there is other evidence, all the evidence must be considered and weighed to determine whether the corporation had the relevant state of mind. In the context of corporate criminal liability, it should be borne in mind that those who ultimately are disadvantaged by any penalty are the shareholders, and sometimes the directors, but not employees, however senior or implicated. Where, as here, the directors give evidence, which is accepted, inconsistent with their having the alleged state of mind, the circumstance that one or two employees did have that state of mind will not - in the absence of a special attribution provision - prove that the corporation had that state of mind.
This does not mean, as was submitted for EPA, that the provision is unworkable, or has no utility, or that such a construction defeats the intention of Parliament. The unworkability, or lack of utility, was said to arise from effectively conferring a choice as to whose state of mind could be relied on. However, the section performs a useful function in facilitating proof of a corporation's state of mind, by providing that evidence of the state of mind of a relevant individual is some evidence of the state of mind of the company. This enables a prosecutor to adduce legally sufficient evidence of the company's state of mind by relying on evidence of the state of a single relevant individual. As explained in the passage extracted above from Ex parte Ryan; Re Johnson, it has the practical effect of casting on the corporation the evidentiary onus of adducing some evidence to the contrary. Absent evidence from the directors to the contrary, a Court would be entitled to treat that evidence as proving that the company had the relevant state of mind. However, where there is other evidence, all the evidence must be weighed to determine the ultimate question, which is whether the company, by its controlling mind, had the relevant state of mind.
As to the intention of Parliament, no extrinsic material illuminating that intent was identified. In the light of the established interpretation of "evidence" clauses in the authorities to which I have referred, the better view of the Parliament's intent is that the provision have the same effect as was held in those cases.
Accordingly, her Honour, having admitted and considered evidence of the state of mind of Mr Davis and Ms Ward, nonetheless correctly identified that it was ultimately the state of mind of the controlling mind that was in issue, and that the effect of the evidence as a whole was that the controlling mind was not intentional, reckless nor criminally negligent.
It follows that ground 1 fails, and the others with it. Given the manner in which the appeal was conducted, it is neither necessary nor appropriate for this Court to consider whether, in the context of an offence of strict liability, once criminal liability was established, it was an unduly narrow approach to confine consideration of the company's state of mind to whether it amounted to actual intention, recklessness or criminal negligence, as distinct from evaluating more broadly the criminal responsibility of the Company without interposing those tests. In any event, the approach adopted by her Honour involved an examination of the extent to which the company - and ultimately its shareholders and directors who would bear the burden of any penalty, as distinct from the relevant employees, who would not - should be regarded as criminally culpable.
EPA eschewed any complaint that the sentence for the sixth offence - being an offence against s 211(2) of the POEO Act of furnishing information to the EPA in purported compliance with a notice to provide information and records issued under s 193 of the POEO Act, knowing that it was false or misleading in a material respect - was manifestly inadequate independently of the s 169C issue. It is therefore neither necessary nor appropriate, on what is equivalent to a Crown appeal, to consider whether the sentence for that offence, which appears very lenient, miscarried on those or any other grounds.
The appeal in the Wollondilly case should therefore be dismissed.

The Davis appeal

The facts on which Mr Davis was sentenced differed in significant respects from those on which Wollondilly was sentenced, both by reason of differences in the agreed facts, and by reason of differences in the evidence that was received. In particular, the agreed facts in Mr Davis' case included that it was by the office manager Ms Ward that Wollondilly provided to the EPA the four false quarterly reports and submitted the false annual report. The additional agreed facts in the Wollondilly case, referred to above, which implicated Mr Davis, were not agreed in his case.
EPA sought to adduce evidence against Mr Davis, from the office manager Ms Ward. Her affidavit deposed to her acts in preparing and submitting the false documents, and that she had done so with the knowledge and approval, and upon the instructions and directions of Mr Davis, and to conversations with him which would have evidenced his knowing involvement in those matters. However, objection was taken to so much of Ms Ward's affidavit evidence as would have tended to evidence that Mr Davis was an intentional participant in Wollondilly's offences. Her Honour upheld that objection, [21] essentially on the basis that the principle in The Queen v De Simoni [22] - that a sentencing judge is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence - meant that evidence that Mr Davis was knowingly concerned was irrelevant, as it would tend to show that he was guilty of an offence against s 169B of being knowingly concerned in, or party to, the commission of the corporate offence. Once the evidence adverse to Mr Davis was excluded, the effect of the remainder of Ms Ward's evidence was to inculpate herself with responsibility for the offence, to the exclusion of Mr Davis, who was sentenced on that basis.
The grounds of appeal are: 1. The sentencing judge erred in excluding the whole or part of [29], [32]-[33], [37], [40], [42] and/or [44]-[45] of the affidavit of Ms Tiffany Ward of 7 August 2018 on the basis that reliance on that evidence violated the principle in R v De Simoni (1981) 147 CLR 383 (Judgment [2019] NSWLEC 26 at [9]-[15]). 2. The sentencing judge erred in excluding the whole of part of [29], [32]-[33], [37], [40], [42] and/or [44]-[45] of the affidavit of Ms Tiffany Ward of 7 August 2018 on the alternative basis that to admit that evidence would give rise to unfair or practical prejudice to the defendant on the basis that it may have required the defendant to give evidence and/or to be cross-examined concerning matters with which he was not charged (Judgment [2019] NSWLEC 26 at [16]-[17]). 3. The sentence imposed by the sentencing judge was manifestly inadequate in that, by reason of the matters set out in grounds 1 to 2 above, the fines imposed on the defendant failed to reflect the objective seriousness of the offences (Sentencing Judgment [2019] NSWLEC 79 at [102]).
The grounds give rise to two main questions, which overlap: the first being the relevance of the offender's state of mind in sentencing for the offence under s 169 and, in particular, whether it is limited to the extent of "due diligence"; and the second being the relationship between s 169 and s 169B, and in particular whether the De Simoni principle is offended if, in sentencing for an offence under s 169, it is taken into account that the offender was an intentional participant. A third question is whether "unfair prejudice" would have been occasioned by the receipt of Ms Ward's evidence.

The De Simoni principle

Part 5.9 of the POEO Act contains several provisions creating what might broadly be characterised as offences of accessorial liability.
Section 168 creates accessorial liability for aiding, abetting, counselling or procuring another person to commit, or attempting or conspiring to commit, an offence under another provision of the Act or the Regulations, for which the penalty is the same as the penalty applicable to an offence against that other provision. However, by s 168(2), a person does not commit an offence because of s 168 for any act or omission that is an offence under s 169B.
Section 169 creates "special executive liability" in respect of offences by corporations against certain specified provisions of the Act, the effect of which is that each person who is a director, or is concerned in the management of the corporation, is taken to have contravened the same provision, unless the person satisfies the court that the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or the person, if in such a position, used all due diligence to prevent the contravention by the corporation. Section 169(1) provides: 169 Liability of directors etc for offences by corporation - offences attracting special executive liability (1) If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that: (a) (Repealed) (b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.
The consequence is that a person convicted of "special executive liability" is guilty of the same offence as the corporation, and is liable to the penalty applicable for that offence. The offence provisions which attract special executive liability applies are specified in sub-s (1A), and are sections 49(2), 64(1), 66(2) or (4), 102, 113, 115(1), 116(1) or (2), 117(1), 120(1), 124, 125, 126, 128, 142A(1), 143(1), 144(1), 144AAA(1), 144AAB, and 152.
Section 169A creates "general executive liability" in respect of offences by corporations against other specified provisions of the Act, the effect of which is that each person who is a director, or is involved in the management of the corporation and is in a position to influence the conduct of the corporation in relation to the commission of the offence, and knows or ought reasonably know that the executive liability offence (or an offence of the same type) would be or is being committed, and fails to take all reasonable steps to prevent or stop the commission of that offence, commits an offence, for which the maximum penalty is the maximum penalty for the executive liability offence if committed by an individual. By s 169A(1), the offence provisions to which general executive liability applies are sections 47(1), 48(2), 86(3), 91(5), 97, 112, 129, 136, 137, 139, 140, 144AA(1), 153A, 153B(2), 153D, 153E, 153F, 155, 156, and 167(4). Section 169A(2) provides: (2) A person commits an offence against this section if: (a) a corporation commits an executive liability offence, and (b) the person is: (i) a director of the corporation, or (ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and (c) the person: (i) knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and (ii) fails to take all reasonable steps to prevent or stop the commission of that offence. Maximum penalty: The maximum penalty for the executive liability offence if committed by an individual.
The prosecution bears the legal burden of proving the elements of the offence against the section (s 169A(3)); and the section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are accessories to the commission of the executive liability offence or are otherwise concerned in, or party to, the commission of the executive liability offence (s 169A(6)).
Section 169B creates offences of accessorial liability in respect of offences against the Act or Regulations committed by corporations, by directors and persons involved in management, for which the maximum penalty is the maximum penalty for the corporate offence if committed by an individual. Section 169B relevantly provides: 169B Liability of directors etc for offences by corporation - accessory to the commission of the offences (1) For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation, whether or not it is an offence referred to in section 169 or 169A. (2) A person commits an offence against this section if: (a) a corporation commits a corporate offence, and (b) the person is: (i) a director of the corporation, or (ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and (c) the person: (i) aids, abets, counsels or procures the commission of the corporate offence, or (ii) induces, whether by threats or promises or otherwise, the commission of the corporate offence, or (iii) conspires with others to effect the commission of the corporate offence, or (iv) is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence. Maximum penalty: The maximum penalty for the corporate offence if committed by an individual. (3) The prosecution bears the legal burden of proving the elements of the offence against this section. … (6) This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are concerned in, or party to, the commission of the corporate offence.
The following observations can be made about those provisions: 1. In the case of s 169A (general executive liability) and s 169B (director's accessorial liability), the prosecution explicitly bears the onus of proof of all elements of the offence (including, in the case of s 169A, failure to take all reasonable steps), and while there is no similar express provision in s 168, the same would undoubtedly apply. However, under s 169 (special executive liability), the defendant bears the onus of satisfying the court that he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or if in such a position used all due diligence to prevent the contravention by the corporation. 2. An additional defence, in former s 169(1)(a), that "the corporation contravened the provision without the knowledge actual, imputed or constructive of the person", was repealed with effect from 1 May 2006. 3. Section 168 does not apply where s 169B applies. Section 169B applies in respect of all offences by corporations against the Act or Regulations, including but not limited to those listed in s 169 and s 169A. Section 169 and s 169A each apply to specific offences against the Act (not the Regulations). The offences to which s 169 (special executive liability) applies are Tier 1 offences, which are the most serious offences against the Act. The offences referred to in s 169A (general executive liability) are less serious. 4. In each case, the maximum penalty for the ancillary offence is the same as for the principal offence, although this result is reached by a different route in the case of s 169 (special executive liability), which makes the "accessory" guilty of the principal offence, rather than of an offence of accessorial liability.
This analysis shows that the scheme of the legislation is that, in addition to imposing accessorial liability in a conventional way and with the conventional onus of proof on directors and individuals involved in management (under s 169B), directors and those involved in management would incur a somewhat stricter liability for certain offences against the Act (s 169A: general executive liability), and a much stricter liability in respect of the most serious offences (s 169: special executive liability). Thus it is intended to be easier to hold executives liable in respect of offences attracting special executive liability than in respect of other offences by corporations, and that they would be exposed to the same maximum liability where special executive liability was established as where conventional accessorial liability was established.
In De Simoni, [23] Gibbs CJ, with whom Mason and Murphy JJ agreed (Wilson and Brennan JJ contra on this point), said it would have been an error for the sentencing judge to take into account matters of aggravation which would have justified a charge for a more serious offence; but the judge had not. Gibbs CJ referred to a general principle that no one should be punished for an offence of which he or she has not been convicted (emphasis added): [24] At first sight it may seem unlikely that the framers of the Code intended that an offender should be sentenced on the fictitious basis that no circumstance of aggravation existed when it is found by the trial judge that such a circumstance did exist, particularly when such a finding is based upon an unchallenged statement of facts made by the prosecutor after the offender has pleaded guilty. However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
As his Honour explained, a common law principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge had been recognised since the eighteenth century, [25] but was affirmed in R v Bright, [26] in which Darling J, delivering the judgment of the Court of Criminal Appeal, said that the judge "must not attribute to the prisoner that he is guilty of an offence with which he has not been charged - nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation". [27]
The application of the principle where there is a hierarchy of offences and one carries a greater penalty than the other is well-established. Because, in the present case, both s 169 and s 169B would carry the same maximum penalty, the question arose whether the principle (or an analogous one) was capable of application.
Two bases were advanced for its application. The first was that the maximum penalty was not the only indicator, and the respective moral obloquy associated with the offences was another. The sentencing judge must have accepted this, as her Honour appears to have concluded that the offence under s 169B was more serious than the offence under s 169; her Honour said: [28] 13 Is s 169B more serious than s 169 so that the De Simoni principle applies? I accept the parties' submissions that the same maximum penalty of $250,000 applies for both charges. The EPA has submitted that because both ss 169(1) and 169B have the same maximum penalty s 169B is not more serious than s 169(1) and that is the only ratio of De Simoni. The summary above refers to circumstances of aggravation which could have been the subject of a separate charge. The elements of s 169B are more objectively serious in terms of personal moral culpability given the factors in subs (2)(c), a matter considered by Basten JA in Cassidy at [7]. Evidence seeking to prove Mr Davis acted fraudulently which would fall within s 169B(2)(c) is clearly more serious than the elements of s 169(1) of failing to exercise due diligence. Consideration of objective seriousness of the offence is limited to the elements of s 169(1). The EPA can seek to establish absence of due diligence to prevent Mr Davis relying on that provision in relation to which he has the onus of proof on the balance of probabilities. Evidence concerning objective seriousness in relation to due diligence would be admissible.
And later (emphasis added): 17 Further, I agree with Mr Davis' submissions that he suffers practical prejudice in this matter if the EPA is allowed to proceed as it seeks to do. If Mr Davis gives evidence on matters relevant to sentencing he runs the risk of being cross-examined about a more serious offence which he has not been charged with.
The second was that there was an analogous principle that an offender was not to be sentenced for a crime of which he or she had not been charged, regardless of whether it was more serious than that for which the offender had been convicted.

Moral Culpability

Support for the first proposition was sought in the judgment of Basten JA in Cassidy v The Queen, [29] where his Honour said: 6 To the extent that the sentencing judge took the statements of intention into account in assessing whether the applicant was entitled to the benefit of a finding of remorse, there was no error. However, to the extent that he took into account an intention to kill in assessing the seriousness of the applicant's conduct, he would appear to have contravened the principle identified in De Simoni. Such an intention would have warranted a charge of attempt to murder, pursuant to ss 28-30 of the Crimes Act. Those, the applicant contended, were more serious offences, with which he had not been charged and to which he had not pleaded. In response, the Director contended that they are different offences, but they are not more serious for the purpose of the De Simoni principle, because they carry the same maximum penalty, namely imprisonment for 25 years. 7 In my view that response should be rejected for two reasons. First, as explained by Blanch J, the fact that each of ss 28-30 of the Crimes Act is subject to a standard non-parole period of 10 years, whereas there is no standard non-parole period for s 198, demonstrates that those offences are treated by the legislature as more serious: Sentencing Procedure Act, s 54A and Table to Part 4, Div 1A. Secondly, despite carrying a liability to the same maximum penalty, in terms of moral culpability, an intention to kill is more serious than an intention to endanger life. Accordingly, the former intent would warrant a more severe sentence than the latter.
The sentencing judge also made reference to the following observations of Bathurst CJ, with whom Hoeben CJ at CL and Button J agreed, in Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council: [30] 108 I do not think that the conclusion of the sentencing judge on whether the damage could be taken into account as an aggravating factor under s 21A(2)(g) was contrary to De Simoni, having regard to his approach to that question. The appellants were punished, not for failing to "protect and support" or "underpin" the adjoining buildings, but for a failure to comply with condition 26 of the development consent and s 81A(2) of the EPA Act. If such a failure to comply led to damage to the adjoining buildings, that would be an aggravating factor. It does not mean that the appellants were being punished for a failure to comply with cl 98E(1) so as to offend the principle in De Simoni. 109 In these circumstances, it is unnecessary to decide whether, if the appellants were in fact sentenced on the basis that the commencement of the additional excavation work caused the damage, contrary to what I have outlined at [103] above, then this would have contravened the principle in De Simoni on the basis that the appellants would have been sentenced for a failure to comply with cl 98E(1). Whether this would in fact contravene the principle in De Simoni depends on whether the appellants were being punished for a "more serious offence" than that for which they were charged: De Simoni at 389. It also depends upon whether the "seriousness" of the offence for this purpose is measured by a liability to a higher maximum penalty or a greater standard non-parole period, as stated in Cassidy at [26] by Blanch J with the agreement of Beech-Jones J, in which case, taking the damage in the present case into account as an aggravating factor would not offend the principle, or whether, at least in a case such as the present where the same maximum penalty is prescribed for a wide-range of offences, the application of the principle depends on the objective seriousness of the offence rather than the maximum penalty, as stated in Cassidy at [7] by Basten JA. Because of my conclusion that punishment was not imposed for what would be a failure to comply with the prescribed condition in cl 98E(1), there is no need to determine this issue.
Prior to - and since - Cassidy, the maximum penalty has consistently been used as the yardstick for measuring whether one offence was more serious, for the purposes of the De Simoni principle, than another. In De Simoni itself, Gibbs CJ concluded (emphasis added): [31] [W]here the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.
In R v Crump, [32] Hunt CJ at CL said that the principle applied only where the circumstance of aggravation would have exposed the offender to a more serious penalty (emphasis added): It has sometimes been argued in this Court that this principle applies also to exclude as an aggravating feature any fact established in the evidence if that fact would by itself have rendered the offender guilty of any other offence, whether or not that other offence would have rendered the offender liable to a more serious penalty than that to which he is liable for the offence for which he is being sentenced. That is not so. At first blush, the early eighteenth century principle to which Gibbs CJ referred in of his judgment (at 389) would support such an argument, but the modern authorities which the Chief Justice went on to discuss (at 389-391) make it clear that such a fact should be excluded only where it would have made the offender liable to a more serious penalty.
In R v Hooper, [33] James J (with whom Howie J and Smart AJ agreed) said that an offence was "more serious" for relevant purposes if it carried a higher maximum penalty: 26 If another offence carries a higher maximum penalty than does the offence for which the offender is being sentenced, that other offence will be a more serious offence for the purposes of the principles stated in De Simoni. See for example R v Booth (unreported CCA 12 November 1993); R v Channells (unreported CCA 30 September 1997); R v JB [1999] NSWCCA 93; R v Hector [2003] NSWCCA 196. … 34 I do not accept the submission that an offence under s 98 of the Crimes Act is to be regarded as a more serious offence than an offence under s 97(2) of the Act. 35 The maximum penalty for an offence under s 98 is the same as the maximum penalty as an offence under s 97(2), namely imprisonment for twenty-five years, so that an offence under s 98 cannot be regarded as a more serious offence on the basis that an offender under s 98 is liable to a greater penalty. 36 The elements of an offence under s 97(2) and an offence under s 98 are not the same and the elements of an offence under s 97(2) are not fully included in the elements of an offence under s 98. For present purposes, the elements of an offence under s 97(2) of the Crimes Act are robbery or assault with intent to rob, whilst armed with a dangerous weapon. For present purposes, the elements of an offence under s 98 of the Crimes Act are robbery or assault with intent to rob, whilst armed with a weapon which is merely an offensive weapon as distinct from a dangerous weapon, with wounding of the victim. Under the definitions of "offensive weapon" and "dangerous weapon" in s 4 of the Crimes Act, "dangerous weapon" is defined as a sub-set of "offensive weapon" and it is clear that many weapons which would fall within the definition of "offensive weapon" would not fall within the definition of "dangerous weapon". A wounding under s 98 is not necessarily a serious injury. A "wounding" is any injury involving a breaking or cutting of the interior layer of the skin and could be quite minor. See Criminal Practice and Procedure New South Wales par [8-s 35.5] at p115423. 37 In my opinion, there is no basis on which this Court could conclude that an offence under s 98 of the Crimes Act is to be regarded as a more serious offence than an offence under s 97(2) of the Act for the purposes of the principles in De Simoni. 38 An offence under s 98 not being a more serious offence than an offence under s 97(2), Judge Berman was not prevented by the principles in De Simoni from taking the wounding of Ms Cruickshank into account as a circumstance aggravating the offence under s 97(2).
In Davies v R, [34] Basten JA (with whom Johnson and RA Hulme JJ relevantly agreed) said: 34 … On any view it would be an error to sentence the offender on the basis that he was liable to an offence which carried a maximum penalty in excess of that to which he had entered a plea; on the other hand, in assessing matters relevant to the sentence for the lesser offence, there is no express indication in De Simoni that the judge would be obliged to ignore an element in a statement of agreed facts.
In R v Fangaloka, [35] Basten JA (with whom Johnson and Price JJ agreed) described the principle as applying where the aggravating circumstances would render the offender liable to a greater maximum punishment than that prescribed for the offence charged: 22 The Director submitted that the effect of this statement was to diminish the weight given to the use of the knife in circumstances where De Simoni had no application. In De Simoni, the High Court identified a principle of general law applicable to sentencing, which prohibits a sentencing judge from taking into account circumstances of aggravation that would render the offender liable to a greater maximum punishment than that prescribed for the offence with which he or she is charged. In De Simoni, the offender was charged with robbery, in the course of which he struck the victim a blow on the back of the head, causing a wound to her scalp. Under the relevant State legislation, robbery with wounding carried a more severe penalty than robbery without that circumstance of aggravation.
In Cassidy, only Basten JA invoked the relative moral culpability of the offences to measure their respective gravity for the purposes of the De Simoni principle. [36] The other members of the Court (Blanch J, with whom Beech‑Jones J agreed) held that the De Simoni principle was engaged exclusively on the basis that the offence of attempted murder carried a standard non-parole period, while that of intentionally destroying property with intent to endanger life did not. [37] It is now well-established that the maximum penalty, and the standard non-parole period where there is one, are the legislative signposts which inform the sentencing process. [38] For present purposes, they provide clear objective markers for comparing the relative seriousness of the offences. Their use as the exclusive indicator of relative seriousness is consistent with the underlying rationale of the principle, which is that an offender should not be exposed, on conviction for a lesser offence, to being sentenced in respect of conduct which would have made it a greater offence, of which he or she has not been convicted. They also provide objective criteria, for Courts, prosecutors and defendants alike, whereas the evaluation of the relative moral obloquy associated with different offences will often be impressionistic and uncertain. Use of such a yardstick would introduce uncertainty where it is neither required nor desirable. Using anything other than the statutory signposts of maximum penalty and standard non-parole period would involve introducing very difficult questions of discretionary judgment about relative moral culpability, which are undesirable in principles of the criminal law.
On that approach, neither offence is more serious; they are equivalent. It is therefore unnecessary to address the EPA's contentions that, if there is a hierarchy, the offence under s 169 is the more serious, because the deemed offence against the primary provision is more serious than accessorial liability, and s 169 picks up only the most serious offences (Tier 1 offences), while s 169B picks up all offences. However, for the reasons explained above, the legislative scheme does not involve a hierarchy of offences relating to accessorial liability for corporate offences, in terms of their relative gravity and associated maximum penalties; rather, it provides a menu of offences of accessorial liability (in which for present purposes I include s 169) all of which carry the same maximum penalty, but the strictness of liability for which increases according to the gravity of the principal offence. This does not support the argument that s 169B is the more serious offence.

Taking into account an offence for which the offender has not been charged

The second proposition does not depend on the relative seriousness of the offences, but on their different elements. It is reflected in the statement of Gibbs CJ in De Simoni of the "fundamental and important principle, that no one should be punished for an offence of which he has not been convicted", and in the first limb of the statement of Darling J in R v Bright, which was cited by Gibbs CJ in De Simoni, that the sentencing judge "must not attribute to the prisoner that he is guilty of an offence with which he has not been charged". The judge in the present case referred to its expression by Simpson J, as her Honour then was, in Harris v Harrison: [39] 82 Moreover, to treat the consequences of the offence as including the unlawful taking of water comes dangerously close to contravening the rule in R v De Simoni (1981) 147 CLR 383. I accept, as was pointed out by senior counsel for the respondent, that any additional offence that might be applicable such as, for example, offences against s 91A (unauthorised taking of water), s 91B (unauthorised use of a water supply work) and s 91H (failure to install or maintain metering equipment as required) are all "Tier 2" offences, and therefore of lesser gravity than a s 91K offence, and not strictly within the De Simoni principle. However, care must be taken to ensure that an offender is not punished for an offence which is not charged.
It is this principle that explains a number of cases which were cited on behalf of Mr Davis for the proposition that De Simoni was not confined to situations in which the maximum penalty for the aggravated offence was greater than for the lesser offence. Thus, in McCullough v R, [40] the offender was charged with malicious wounding, and not with the malicious infliction of grievous bodily harm. At the time of the commission of the offence s 35(1) contained both offences: s 35(1)(a) malicious wounding and s 35(1)(b) malicious infliction of grievous bodily harm, and both carried the same penalty. A wounding does not necessarily amount to grievous bodily harm and grievous bodily harm does not necessarily include a wounding. While the two offences were included in the one section and carried the same penalty, they were distinct offences. In sentencing for malicious wounding, the judge took into account other injuries inflicted upon the victim that were not wounds and were more serious than the wounds. Howie J (with whom McLellan CJ at CL and Simpson J agreed) held that this was impermissible, because although the same penalty applied for both malicious wounding and malicious infliction of grievous bodily harm, there were two separate offences depending upon the type of injury inflicted, and it was not permissible to sentence an offender for injuries not charged where those injuries are more serious: 36 The applicant was charged under s 35(1)(a). A wound is the penetration of the internal layer of the skin. In this case there were a number of wounds. There was a bite to the finger that required three sutures. There were also very minor lacerations of the head that did not require suturing. The medical report does not number or describe these lacerations so minor were they. Arguably the most severe injury was the fracture of the wrist and there was very severe bruising around the eyes. The pictures of the victim are truly pitiable. Although she spent five days in hospital, obviously it was not a result of the wounds. … 38 The Judge was clearly entitled to take into account the nature of the assaults that gave rise to, or surrounded, the wounding. She was also entitled to take into account other injuries inflicted in the course of conduct resulting in the wounding that were less serious than the wounding. In my opinion her Honour was not, however, entitled to take into account other injuries inflicted upon the victim that were not wounds and were more serious than the wounds. A broken wrist is not encompassed in a charge of wounding and, particularly in the case of a 60 year old, was considerably more serious than the wounds. I do not believe that the Judge could take into account that the victim spent five days in hospital because that was not identified as being a result of the wounding or of injuries that were less serious than the wounding. 39 The Crown argued that the Judge was entitled to take into account all of the injuries inflicted because to do so was not in breach of the De Simoni principle. This, it was argued, was because the same penalty applied for both malicious wounding and malicious infliction of grievous bodily harm. But, as I have indicated, there are two separate offences depending upon the type of injury inflicted. It does not seem to me to be permissible to sentence an offender for injuries not charged where those injuries are more serious. Had the applicant been charged with maliciously inflicting grievous bodily harm, I have no doubt that the Judge could have taken into account all the injuries, whatever their nature, because together they amounted to grievous bodily harm, or because they were less serious than the injury that was grievous bodily harm. To sentence for the infliction of grievous bodily harm on a charge of wounding, seems to me to eradicate the difference between the two offences. The Crown submissions suggest, that, if there was any error, it was because of a "faulty averment" as to the nature of the injuries. But this is to blur the fact that there are two separate offences contained in s 35.
Similarly, in R v Young, [41] where the offender had been indicted on alternative charges of robbery and stealing from the person - both offences under the same section of the Crimes Act, which carry the same maximum penalty - and the Crown had accepted a plea of guilty to the charge of stealing from the person in full discharge of the indictment, it was held impermissible to take into account for the purposes of sentencing a threat or force putting the victim in fear, which was an element of robbery but not of stealing. After referring to observations in the judgment of Smart AJ (with whom Wood CJ at CL agreed) in R v Hua, [42] to the effect that "too much should not be made of the distinction between steal from the person and robbery", and that in sentencing for stealing "[i]t would not be wrong for the judge to take into account that the offence had the potential for violence or the potential for putting the victim in fear" [43] , Hidden J (with whom Greg James J and Smart AJ agreed) said: 10 Nevertheless, nothing in Smart AJ's judgment in Hua suggests that the distinction between robbery and stealing from the person should not be maintained. To do so, and to be seen to do so, is of particular importance in a case such as the present. No doubt, the applicant offered the plea of guilty to the alternative charge of stealing from the person, and the Crown prosecutor accepted it, in the expectation that he would be dealt with less severely than he might have been if he had faced sentence for robbery. The passages from the remarks on sentence to which I have referred do suggest that his Honour blurred the distinction between the two offences, and give rise to a reasonable apprehension that the sentencing exercise was not focussed upon the elements of the alternative charge to which the applicant had pleaded guilty.
Thus the real question is whether, in sentencing for an offence under s 169, taking into account as a potentially aggravating circumstance the offender's state of mind involves punishing the offender for a matter which is extraneous to the offence, though it could be relevant to a different offence. In my judgment it does not, for the following reasons.
First, it is uncontroversial that the state of mind of an offender - including actual intention, recklessness, or negligence - is relevant to culpability for the purposes of sentencing for an offence of strict liability, notwithstanding that the offender's state of mind is not an element of liability. An offence that is committed intentionally, recklessly or negligently is objectively more serious than one not so committed, and those states of mind exacerbate the objective culpability of an offender. [44]
Secondly, Mr Davis accepted that his state of mind was relevant, at least to the extent of "due diligence", with the consequence that her Honour considered whether his culpability was exacerbated by recklessness or negligence. There is no sense in recklessness or negligence being relevant, yet actual intention not.
Thirdly, and fundamentally, the scheme of provisions for accessorial liability in the POEO Act, as explained above, is not to confine all prosecutions of officers who are knowingly concerned in a corporate offence to s 169B, but to facilitate prosecutions in respect of offences which attract special executive liability under s 169 - and carry the same maximum penalty as officer accessorial liability under s 169B - regardless of whether or not the officer is an intentional participant. This does not render state of mind - including actual intention (or knowing concern) - irrelevant to culpability for the purposes of sentencing under s 169.
Accordingly, taking into account the offender's state of mind - including actual intention - in sentencing for an offence under s 169 does not involve punishing the offender for a matter which is extraneous to the offence, nor for a different offence. It follows that the exclusion of the evidence of Ms Ward was not justified on the basis of the De Simoni principle, or any analogous principle. Ground 1 is established.

Unfair prejudice

That was not the only basis on which Ms Ward's evidence was not admitted; her Honour rejected it also on the basis that it would be "unfairly prejudicial": 16 I also agree with Mr Davis' submission that reliance on the contested parts of Ms Ward's affidavit if read would give rise to unfair prejudice to him. Absent some statutory provision reversing the onus of proof, a prosecutor must establish matters in contest beyond reasonable doubt. In order to challenge that evidence if read, Mr Davis may have to give evidence concerning matters he is not charged with. 17 Further, I agree with Mr Davis' submissions that he suffers practical prejudice in this matter if the EPA is allowed to proceed as it seeks to do. If Mr Davis gives evidence on matters relevant to sentencing he runs the risk of being cross-examined about a more serious offence which he has not been charged with.
However, in the course of argument it became apparent - and counsel for Mr Davis rightly accepted - that this ground of objection could not succeed independently of the De Simoni ground. The concern was that, if he chose to give evidence, Mr Davis might have been cross-examined "about a more serious offence which he has not been charged with". [45] But this ground could not succeed if the De Simoni point did not, because if evidence of intention was not irrelevant to culpability for the s 169 offence, it could not be unfair to adduce evidence of it; and (as already explained) the offence under s 169B is not, for relevant purposes, a "more serious offence".
Moreover, although counsel was repeatedly pressed to identify the unfair prejudice said to be involved, this was never satisfactorily explained. It was not suggested that by giving evidence Mr Davis might expose himself to conviction for another offence, it being acknowledged that he would have available a plea of autrefois. But even if that be incorrect, that would not be unfair prejudice, but the result of a forensic decision to give evidence. In particular, Lee v The Queen, [46] which counsel for Mr Davis invoked, states only the fundamental proposition that the prosecution cannot compel a person charged with an offence to assist in the discharge of its onus of proof, and cannot be required to testify. As counsel for EPA submitted, this says nothing about conducting a case in a manner that results in a defendant being confronted with having to make a forensic decision whether or not to give evidence, which frequently arises. [47]
Unfair prejudice, therefore, did not provide a proper basis for excluding the relevant evidence of Ms Ward. Ground 2 is established.

Conclusion

Error in the sentencing process having been established, the question is what is then to be done. Her Honour's erroneous exclusion of the disputed evidence of Ms Ward resulted in the somewhat bizarre outcome that Mr Davis was sentenced on the basis of so much of the evidence of Ms Ward as emphasised her own role, to mitigate or exonerate Mr Davis, while excluding so much of her evidence as deposed that she had done what she did following conversations with or instructions from Mr Davis. The usual practice of the Court is to resentence on the material before the sentencing judge and any additional material adduced in this Court. That would necessitate not only receiving the rejected evidence of Ms Ward, but also permitting cross‑examination on it. No doubt for that reason, EPA submitted that the matter should be remitted to the Land and Environment Court for resentencing.
Criminal Appeal Act, s 5D(1A), which has been set out above, provides that on an appeal by the EPA against sentence, "the Court of Criminal Appeal may impose such sentence as to it may seem proper". It is to similar effect as s 5D(1) which, in respect of Crown appeals, provides: (1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.
Similarly, in respect of appeals by convicted persons against sentence, provision is made, by s 6(3): (3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
Those provisions do not appear to contemplate remitter of the matter for resentencing by the first instance court, but envisage that this Court will resentence the offender. In contrast, in respect of appeals against conviction, provision is made for the Court to order a new trial by s 8(1): (1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.
There is no corresponding provision authorising remitter for sentence to the first instance court. However, s 12(2) provides: (2) The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.
This Court has considered that provision to permit remitter for resentencing and, as the EPA noted, remitter for resentence had been ordered in a number of cases [48] in reliance on it. However, residual doubt as to whether it does so has been enlivened by the observations of the High Court in Betts v The Queen, in which French CJ, Kiefel, Bell, Gageler and Gordon JJ said: [49] [17] The question of whether the appellate court is empowered to remit the determination of a sentence appeal under the supplemental powers conferred by s 12(1) of the CAA and its analogues is controversial [See R v T [1995] 2 Qd R 192; R v Zhong Wen Huang Wong (1995) 16 WAR 219; R v Webber (1996) 86 A Crim R 361 at 365 per Winneke P; R v Ferrari [1997] 2 Qd R 472; R v Palmieri [1998] 1 VR 486 at 501-2 per Charles JA; Thompson v R (2000) 113 A Crim R 295; [2000] WASCA 186; R v Kreutzer (2013) 118 SASR 211; [2013] SASCFC 130 at [9] per Kourakis CJ, at [55] per Gray and Blue JJ]. A general power of remittal was introduced into the CAA in 1987 [Criminal Appeal (Amendment) Act 1987 (NSW), s 3, Sch 1 Item 3]. It is contained in s 12(2), which provides: "The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made." [18] To the extent that the extrinsic material affords any assistance in identifying the object of the inclusion of the general power of remittal, it does not provide support for the conclusion that s 12(2) qualifies the conditional re‑sentencing obligation imposed by s 6(3) [In his speech on the second reading for the Supreme Court (Appeals) Amendment Bill and the Criminal Appeal (Amendment) Bill, the Attorney-General referred to the introduction of the general power of remitter in this way "This power will be of great assistance in matters where, for example, there are deficiencies in the evidence or where there are further matters to be considered which can be better attended to before a first-instance judge. These bills are a rationalization of existing avenues of appeal from interlocutory applications in criminal proceedings on indictment in the District Court and the Supreme Court, while ensuring that issues can be dealt with which justice requires should be resolved prior to the completion of a trial." New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 17 November 1987, pp 16088-16089]. [19] As the Court of Criminal Appeal recognised in O'Neil-Shaw v The Queen, there is a tension between the terms of s 6(3) and recourse to the power of remittal [[2010] NSWCCA 42 at [30] per Basten JA; at [56] per Johnson J]. The utility of a power of remitter in a case such as O'Neil-Shaw, where the sentence hearing has been tainted by procedural irregularity, is evident. The question of whether it is available is not reached in this case. It might be a matter for consideration by the legislature.
In the light of the above observations of the High Court, I doubt that this Court is empowered, in an appeal against sentence, to remit the matter for resentencing in the court below. First, all the provisions dealing with appeals against sentence, which have been referred to above - including s 5D(1A) - indicate that this Court is to substitute such sentence as it considers appropriate. Secondly, the supplemental powers to receive evidence enable this Court to do so, even where the sentence hearing has been tainted by procedural irregularity or the incorrect reception or rejection of evidence. That does not deny the utility of a power to remit, but it does suggest that it is not essential. Thirdly, a power to remit for resentencing is not a "supplemental power", of the kind contained in s 12, in connection with the hearing and determination of an appeal, but a substantive outcome of the appeal. Fourthly, if the Court were intended to have that power, one would expect to find it in a provision analogous to s 8(1). Fifthly, as noted by the High Court, the second reading speech on the introduction of s 12(2) provides no support for a conclusion that it was intended to qualify conditional re-sentencing obligation imposed by s 6(3) - or for that matter by s 5D(1), or s 5D(1A).
However, it is unnecessary finally to resolve that question, because in my judgment the Court should, notwithstanding the error in the sentencing process, decline as a matter of discretion to interfere with the sentence. In the context of Crown appeals - to which the present appeal is analogous - a primary consideration relevant to the exercise of the Court's residual discretion is the purpose of such an appeal, which is to lay down principles for the governance and guidance of sentencing courts. [50] Related to this, another powerful consideration for exercising the residual discretion against allowing a Crown appeal would be if the result were to create an unjustifiable disparity between any new sentence and an unchallenged sentence previously imposed on a co-offender. [51] Another relevant consideration is the impact on the respondent, [52] who has already once been sentenced. The appellant must "negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised". [53] Consistent with the purpose of a Crown appeal and the factors which inform the exercise of the residual discretion, remitter for resentencing - assuming it is available - would be appropriate only if there is at least a strong prospect that a substantially greater sentence would be imposed.
While there is some prospect that, if Ms Ward's wrongly rejected evidence were admitted, a greater sentence could be imposed, there are significant factors to the contrary. First, there are reasons for doubting that even if Ms Ward's evidence had been received, it would have been accepted, or preferred to that of Mr Davis, so as to establish beyond reasonable doubt that he and not Ms Ward was the architect of the offending conduct. The sentencing judge appears to have accepted only so much of Ms Ward's evidence as was adverse to herself or favourable to Mr Davis, and to have noted inconsistencies in it: [54] 48 [Ms Ward]'s affidavit evidence did not establish otherwise in relation to the collection of samples by Mr Davis beyond reasonable doubt. [Her] evidence confirmed the procedures for collecting samples (see [23] and [24]). [Ms Ward]'s evidence about whether samples were collected over the offence period of 12 months was inconsistent. In [her] affidavit at [14] [Ms Ward] said that not all samples had been collected. In cross-examination at [25] [she] said that all but one had been collected and that [she] had left them out for Toll to collect. … 60 Mr Davis' counsel submitted that [Ms Ward]'s credibility was further eroded by inconsistencies between [her] answers to questions in the ROI, [her] affidavit and [her] answers in cross-examination in four respects. I have dealt with one inconsistency concerning whether samples were collected in the offences period above. One inconsistency concerned the s 211(2) charge of Wollondilly Abattoirs which is not relevant to Mr Davis' charges. It is not necessary to consider the evidence in exhibits 1 and 2 which was concerned with that matter. The other inconsistencies concerned whether Mr Davis always received ALS reports and whether [Ms Ward] prepared the false October 2016 report not the subject of a charge. I do not need to consider these matters further.
Ms Ward's cross-examination revealed other difficulties. She conceded that she had lied to EPA during her record of interview, in that she had said that she had made up the numbers for one report only; [55] and gave conflicting accounts of how she had obtained the falsified documents submitted to EPA, in that in her interview she accepted that she collated the documents submitted in answer to the notice to produce, collecting the documents herself from the filing cabinet; [56] while in her affidavit she claimed that Mr Davis had obtained them from the filing cabinet and given them to her. [57] In those circumstances, it is far from clear that Ms Ward's evidence, if admitted, would have satisfied the sentencing judge beyond reasonable doubt that Mr Davis was an intentional participant in the offending conduct.
Secondly, notions of parity - to which great significance was given in the context of a Crown appeal in Green v The Queen - weigh against an outcome in which, as a result of a successful prosecution appeal, Mr Davis should suffer a penalty very much greater than the principal offender; and that is all the more so when, unlike the principal offender, he was not convicted, as the company was, of the offence under s 211. This consideration is not deprived of relevance by the circumstance that, by operation of s 169, he is deemed to be guilty of the principal offence, rather than liable as an accessory.
Thirdly, Mr Davis suffered considerable extra-curial punishment. He has lost his job as a result of his role in the offences, which has occasioned considerable hardship to himself and his family. In addition to the fines imposed, he has incurred substantial costs of his own, and submitted to an order that he pay $40,000 costs to EPA, at first instance; and he will have incurred his own costs of this appeal.
Fourthly, the cases considered by the sentencing judge under the rubric of "even-handedness" illustrate that, while the penalty may have been lenient, it was not wholly discrepant with sentencing practices. [58]
When regard is had to all those matters, I am unpersuaded that, despite the errors in the sentencing process, there is a sufficient prospect that a substantially greater sentence would be imposed if the matter were remitted, as to warrant that course if it were available. For the same reasons, despite the errors in the sentencing process, I am unpersuaded that the sentence is, in all the circumstances, so inadequate as to amount to "an affront to the administration of justice" such as to require intervention. [59] Accordingly, despite the errors in the process, as a matter of discretion, in my view, this Court should not interfere.
In Mr Davis' case, therefore, although grounds 1 and 2 succeed, as a matter of discretion the appeal should be dismissed.

Costs

Before the sentencing judge, costs orders were made in each matter, by agreement. They were made pursuant to Criminal Procedure Act 1986 (NSW) ss 257B and 257G. However, as Criminal Appeal Act, s 17(1), provides that on the hearing or determination of an appeal, no costs shall be allowed on either side, no question of costs arises in this Court.

Disposition

I propose the following orders:
In Environment Protection Authority v Wollondilly Abattoirs Pty Ltd (Nos 2018/145824-145828, 145882): 1. That the appeal be dismissed.
In Environment Protection Authority v Davis (Nos 2018/145865-145869): 1. That the appeal be dismissed.
HARRISON J: I agree with the judgment of Brereton JA and with the orders that he proposes.
However, although his Honour found it unnecessary finally to resolve the question, I would not wish to be taken to endorse the proposition that there can never be circumstances in which this Court may remit an appropriate matter for re-sentence to the court below. In this respect I refer to Pym v R [2014] NSWCCA 182 and Rae v R [2019] NSWCCA 284.
BELLEW J: I agree with Brereton JA.

Endnotes

Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWLEC 72.
Environment Protection Authority v Davis [2019] NSWLEC 79.
R v Chandler [2019] NSWCCA 250 at [47] (Hoeben CJ at CL), citing Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 45; [2010] HCA 45 at [58].
Dinsdale v The Queen at [6].
R v Harris [2015] NSWCCA 81 at [46] (Adamson J, with whom Basten JA and RA Hulme J agreed).
[2016] NSWCCA 193.
Lennard's Carrying Company Ltd v Asiatic Petroleum Company Ltd [1915] AC 705 at 713 (Viscount Haldane); HL Bolton (Engineering) Company Ltd v TJ Graham & Sons Ltd [1957] 1 QB 159 at 172 (Denning LJ); Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 171 (Lord Reid), 180 (Lord Morris), 187 (Viscount Dilhorne), 190 (Lord Pearson); Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186 at [95] (Edelman J, with whom Allsop CJ and Besanko J agreed).
Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 506 (Lord Hoffmann for their Lordships); Director of Public Prosecutions Reference No 1 of 1996 [1998] 3 VR 352 at 355 (Callaway JA, with whom Phillips CJ and Tadgell JA agreed); Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270 at [17] (Spigelman CJ, with whom Ipp JA and Hunt AJA agreed); Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186 at [97]-[99] (Edelman J, with whom Allsop CJ and Besanko J agreed); Bilta (UK) Ltd (in liq) v Nazir (No 2) [2016] AC 1; [2015] UKSC 23 at [41] (Lord Mance); Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) (2018) 357 ALR 240; [2018] FCA 751 at [1660] (Beach J).
Director General, Department of Education and Training v MT (2006) 67 NSWLR 237' [2006] NSWCA 270 at [16], referring to The Lady Gwendolen [1965] P 294 at 343-344; AAPT Ltd v Cable and Wireless Optus Ltd (1999) 32 ACSR 63; [1999] NSWSC 509 at [91]-[92].
Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270 at [19].
Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270 at [19]-[20].
Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270 at [23]-[24].
(2001) 115 LGERA 304; [2001] NSWCCA 280.
Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186 at [100] (Edelman J).
(1975) 11 SASR 504.
Evidence Act 1929-1957 (SA) s 37b.
(1975) 11 SASR 504 at 537-8.
(1932) 48 CLR 487 at 507-8; [1932] HCA 64.
(1943) 44 SR (NSW) 12 at 17-18.
(2016) 249 FCR 421; [2016] FCAFC 186. Then known as Trade Practices Act 1974 (Cth).
[2019] NSWLEC 26.
(1981) 147 CLR 383; [1981] HCA 31.
(1981) 147 CLR 383; [1981] HCA 31. The High Court unanimously allowed the appeal from the Western Australia Court of Criminal Appeal and remitted the matter to deal with other grounds.
(1981) 147 CLR 383 at 389.
Gibbs CJ referred to R v Turner (1718) 1 Str 140; 93 ER 435; and Chitty, The Criminal Law, 2nd ed (1826), vol 1, p 231b.
[1916] 2 KB 441; [1916-17] All ER Rep 811. The context was that the offender had pleaded guilty to attempting to elicit information with regard to the manufacture of war material, contrary to the Defence of the Realm (Consolidation) Regulations 1914 (UK). The sentencing judge took the view that it was his intention in doing the acts charged to assist the enemy; if such an intention had been charged and proved the prisoner was liable to the death penalty. He was sentenced to penal servitude for life. The Court of Criminal Appeal held that it was wrong to take this circumstance of aggravation into account when it had not been charged in the indictment. Gibbs CJ noted that the principle had since been applied in R v Toomey [1964] Crim LR 419 (where offender had snatched a handbag from a woman aged 71, who as a result suffered seven broken ribs, plea of not guilty to robbery with violence was accepted and he was sentenced for simple robbery, but in passing sentence the judge referred to the violence which had caused the complainant's injuries: held that the sentence appeared to be based to some extent on the alleged violence, and sentence reduced to conform to the plea of guilty to simple robbery); R v Foo [1976] Crim LR 456 (where offender pleaded guilty to attempting to possess heroin, but was sentenced on basis of evidence that he was a trafficker: held that as he had not been charged with possession with intent to supply, it was wrong to sentence him as a trafficker, and sentence reduced); R v Huchison [1972] 1 WLR 398; [1972] 1 All ER 936 (where offender guilty of a charge of incest, sentencing judge referred to other related acts of incest which had not been charged: held, it was not right to take into account the other acts of incest, since to do so would in effect deprive the offender of his right to trial by jury in respect of those alleged offences); and Lovegrove v R [1961] Tas SR 106 (where offender was acquitted of attempted murder and convicted of causing grievous bodily harm, and was not charged with wounding with intent to cause bodily harm, but was sentenced on the basis that he had intended to cause grievous bodily harm: held, that course was not open to the sentencing judge, and the sentence should be reduced).
[1916] 2 KB 441 at 444-5.
[2019] NSWLEC 26.
(2012) 220 A Crim R 420; [2012] NSWCCA 68.
[2018] NSWCCA 56.
(1981) 147 CLR 383 at 392.
(NSWCCA, Mahoney JA, Hunt CJ at CL and Allen J, 30 May 1994, unreported).
[2004] NSWCCA 10. Although an alternative approach was perhaps considered (in [36]), that is better understood as addressing the distinct but related principle that an offender is not to be sentenced for an offence of which he or she has not been convicted.
[2019] NSWCCA 45.
[2019] NSWCCA 173.
[2012] NSWCCA 68 at [7].
[2012] NSWCCA 68 at [24]-[26] (Blanch J).
See Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27].
(2014) 86 NSWLR 422; [2014] NSWCCA 84 at [82].
(2009) 194 A Crim R 439; [2009] NSWCCA 94.
[2003] NSWCCA 276.
[2002] NSWCCA 384.
[2002] NSWCCA 384 at [20].
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 700; Gittany Constructions Pty Limited v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [123]; Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [42]; Mouawad v Hills Shire Council (2013) 199 LGERA 28; [2013] NSWLEC 165 at [171].
[2019] NSWLEC 29 at [17].
(2014) 253 CLR 455; [2014] HCA 20 at [32]-[33].
Cf Ballard v R [2011] NSWCCA 193 at [21] (Harrison J, with whom Beazley JA and Hall J agreed).
R v Hopoi [2014] NSWCCA 263; O'Neil-Shaw v The Queen [2010] NSWCCA 42.
(2016) 258 CLR 420; [2016] HCA 25 at [17]-[18].
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [36].
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [37]-[40].
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [43].
CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [34], [56] citing Heydon JA in R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 at [12].
[2019] NSWLEC 79.
Transcript 1/21:318.28-46.
Transcript 1/21:329.09-41, 327.30.
Transcript 1/21:328.29-38.
[2019] NSWLEC 79 at [94]-[96], referring to Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi [2015] NSWLEC 78; Environment Protection Authority v Transpacific Industries Pty Limited; Environment Protection Authority v Transpacific Refiners Pty Limited [2010] NSWLEC 85; and Environment Protection Authority v Signium Pty Ltd [2018] NSWLEC 126.
Cf Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [42]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2019

Environment Operations Act 1997(NSW)ss 168, 169, 169A, 169B, 169C

National Security (Prices) Regulations 1940(Cth)

Appeal (Amendment) Act 1987(NSW)

Trade Practices Act 1974(Cth)

Criminal Appeal Act 1912(NSW)ss 5D(1), 5D(1A), 6(3), 8(1), 12(2), 17(1), s 5D(1A), to

(2001) 115 LGERA 304

(2009) 168 LGERA 121

(2006) 145 LGERA 189

At a glance

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