Jindalee Road Wines Pty Ltd v Natural Resources Access Regulator; Littore v Natural Resources Access Regulator

Medium Neutral Citation: Jindalee Road Wines Pty Ltd v Natural Resources Access Regulator; Littore v Natural Resources Access Regulator [2025] NSWCCA 215

Hearing dates: 30 June 2025

Date of orders: 10 December 2025

Decision date: 10 December 2025

Before: N Adams J at [1]
Cavanagh J at [5]
Rigg J at [222]

Decision: (1) Set aside the fines imposed on 27 March 2024 (as varied on 16 October 2024) and in lieu thereof, impose the following fines:
(a) David Alan Littore:
(i) In proceedings 2023/00078917, David Alan Littore is to pay a fine of $90,000;
(ii) In proceedings 2023/00078918, David Alan Littore is to pay a fine of $48,000;
(iii) In proceedings 2023/00078919, David Alan Littore is to pay a fine of $37,500;
(iv) In proceedings 2023/00078920, David Alan Littore is to pay a fine of $37,500;
(b) Jindalee Road Wines Pty Ltd ACN 612 316 239:
(i) In Proceedings 2023/00078671, Jindalee Road Wines Pty Ltd ACN 612 316 239 is to pay a fine of $180,000;
(ii) In Proceedings 2023/00078672, Jindalee Road Wines Pty Ltd ACN 612 316 239 is to pay a fine of $120,000;
(iii) In Proceedings 2023/00078673, Jindalee Road Wines Pty Ltd ACN 612 316 239 is to pay a fine of $22,500; and
(iv) In Proceedings 2023/00078674, Jindalee Road Wines Pty Ltd ACN 612 316 239 is to pay a fine of $22,500.
(2) The parties should inform the Court within 7 days if any further orders are necessary at this time.

Catchwords: ENVIRONMENT AND PLANNING – environmental crime – offending contrary to ss 342(1)(a) and 343(1) of Water Management Act 2000 – strict liability offences – where appellants fined for damaging or interfering with work owed or under control of irrigation corporation – where appellants took water from water supply work without authorisation
SENTENCING – appeal against sentence – principle of totality in the imposition of fines – error in sentencing judge’s approach to totality – considerations when sentencing a corporation – parity – appellants’ resentenced
PRACTICE AND PROCEDURE – arithmetical error in sentence – r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) – amendment made under slip rule – slip rule incorporated into the Land and Environment Court Rules 2007 (NSW) in respect of Class 5 proceedings – amendment permissible – application of the slip rule does not permit re-exercise of sentencing discretion – no re-exercise of discretion required here

Legislation Cited: Crime (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(a)
Criminal Appeal Act 1912 (NSW), s 5AB
Land and Environment Court Act 1979 (NSW), s 21
Water Management Act 2000 (NSW), ss 3, 342(1)(a), 343(1), 347, 364A, 364A(1)(g), 364A(2)
Land and Environment Court Rules 2007 (NSW), Pt 5, rr 5.2(2), 5.2(2)(h)
Uniform Civil Procedure Rules 2005 (NSW), Pt 36, rr 36.16, 36.17

Cases Cited: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4; (2024) 260 LGERA 358
Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10
Ainsworth v Wilding [1896] 1 Ch 673
Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234
Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive, Office of Environment and Heritage v Ausgrid (No 2) [2013] NSWLEC 63
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71
EPA v Barnes [2006] NSWCCA 246
Environment Protection Authority v Truegain Pty Limited (No 5) [2014] NSWLEC 184
Epacris Pty Limited v Director-General, Department of Natural Resources (2007) 69 NSWLR 507; [2007] NSWCCA 76
Fleming v White (1981) 2 NSWLR 219
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642; [1906] HCA 71
JA v R [2024] NSWCCA 130
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39
Lloyd v R [2017] NSWCCA 303
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Mohr v R [2024] NSWCCA 197
Murray v R [2024] NSWCCA 107
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R (Cth) v Petroulias (No 22) [2007] NSWSC 692; (2007) 176 A Crim R 309
R v Holder (1983) 3 NSWLR 245
R v M.A.K., R v M.S.K. [2006] NSWCCA 381; (2006) 167 A Crim R 159
Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
Storey & Keers Pty Limited v Johnstone (1987) 9 NSWLR 446
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Texts Cited: DA Thomas, Principles of Sentencing (2nd ed, 1979, Heinemann)

Category: Principal judgment

Parties: Proceedings 2023/00078671; 2023/00078672; 2023/00078673; 2023/00078674
Jindalee Road Wines Pty Ltd (Appellant)
Natural Resources Access Regulator (Respondent)
Proceedings 2023/00078917; 2023/00078918; 2023/00078919; 2023/00078920
David Alan Littore (Appellant)
Natural Resources Access Regulator (Respondent)

Representation: Counsel:
C Ireland / E Elliott (Appellants)
J Single SC / A Brown (Respondent)
Solicitors:
Hunt & Hunt Lawyers (Appellants)
Crown Solicitor’s Office (NSW) (Respondent)

File Number(s): 2023/00078671; 2023/00078672; 2023/00078673; 2023/00078674; 2023/00078917; 2023/00078918; 2023/00078919; 2023/00078920

Publication restriction: Nil

HEADNOTE

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

Following pleas of guilty, the appellants were sentenced by Duggan J in the Land and Environment Court each in respect of four offences contrary to ss 342(1)(a) and 343(1) of the Water Management Act 2000 (NSW). Each appellant was sentenced in relation to one ‘Infrastructure Offence’ and one ‘Take Water Offence’ in respect of two separate properties.

The offending occurred over two periods on properties leased and operated by Jindalee Wines. Mr Littore was employed as the farm manager. He was not a director of the company. During the relevant periods, Mr Littore twice installed or permitted to be installed bypass infrastructure which connected to irrigation infrastructure allowing water to be pumped from the infrastructure with the intention of bypassing the Western Murray Irrigation Limited meter. Each bypass infrastructure was installed for the sole purpose of water being taken in an unmetered fashion.

Both offences attract a strict liability. It was accepted that Jindalee Road was liable for the conduct of Mr Littore, although Mr Littore was acting without the authority or knowledge of Jindalee Road.

The appellants were originally sentenced to fines in respect of each offence on 27 March 2024. Pursuant to a motion filed by the respondent, the orders made imposing the fines were then varied having regard to an arithmetical error in the sentencing judgment. The amendment to the original fines was made pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) (the ‘slip rule’), a rule which the respondent maintained was incorporated into the Land and Environment Court Rules 2007 (NSW) (“LEC Rules”) in respect of Class 5 proceedings, albeit the proceedings were criminal proceedings.

The appellants pursued two separate appeals, one in respect of the sentencing judgment as amended by the orders made on the motion, and another in respect of the original sentencing judgment as it stood prior to amendment. The appellants submitted that the sentencing judge did not have the power to amend the original judgment and further that the sentencing judge had erred in a number of other respects including her Honour’s approach to totality, parity and consideration of relevant sentencing factors. Further, the appellants submitted that the fines imposed were manifestly excessive (whether that be either or both the original fines and the fines as amended by the way of the orders made on the motion).

The Court (per Cavanagh J, N Adams J agreeing (with additional reasons), Rigg J agreeing) held, allowing the appeal and resentencing the appellants:

Power of the sentencing court to amend its original orders:

1. UCPR Pt 36 is incorporated into the Land and Environment Court Rules by virtue of r 5.2(2) and applies to proceedings in Class 5, 6, or 7 of the Land and Environment Court jurisdiction. The sentence proceedings were Class 5 proceedings (at [94]-[95]).
2. The phrase “so far as applicable” in r 5.2(2) of the LEC Rules does not permit a contextual or purposive analysis of the particular rule in determining its application (at [135]-[137]).

R (Cth) v Petroulias (No 22) [2007] NSWSC 692; (2007) 176 A Crim R 309; Fleming v White (1981) 2 NSWLR 219; Epacris Pty Limited v Director-General, Department of Natural Resources (2007) 69 NSWLR 507; [2007] NSWCCA 76, considered.

3. As UCPR r 36.17 was incorporated into the rules governing Class 5 proceedings in the Land and Environment Court, the amendment of the original orders, that is, each of the fines imposed by the sentencing judge, was permissible under r 36.17 (the slip rule). The purpose of the slip rule is to ensure the orders of the Court truly represent what the Court intended to pronounce (at [104]).

Ainsworth v Wilding [1896] 1 Ch 673; Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642; [1906] HCA 71; Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34, cited.

4. Whilst the slip rule does not permit the re-exercise of any independent sentencing discretion, her Honour was not required to exercise any discretion or undertake any evaluative exercise in determining the motion (at [113]-[115], N Adams J at [1]-[4]).
5. The orders made on the respondent’s motion amending the original orders were properly made. In the circumstances, any appeal could only lie from the orders imposing the fines after amendment pursuant to the motion.

Totality:

6. The principle of totality applies to the imposition of fines. Even in circumstances in which the offending occurred at different premises and at different times, the principle of totality required that, after indicating the fine for each offence, the sentencing judge stand back and assess whether the total of all of the fines was just and appropriate, and reflected the total criminality involved. Her Honour erred in assessing totality only from the perspective of assessing the two offences for each property rather than assessing the total amount of all of the fines imposed on each applicant (at [158], [168]-[175]).

Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; EPA v Barnes [2006] NSWCCA 246; Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, cited.

Parity:

7. Although the fines imposed on Mr Littore and the company were different, this Court should be cautious before intervening on a parity appeal particularly when the sentencing judge has carefully considered the similarities and differences between co-offenders (at [177], N Adams J at [1]-[5] agreeing, Rigg J at [223] agreeing). No error was shown.

Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77; Lloyd v R [2017] NSWCCA 303, cited.

The Court resentenced, again by way of the imposition of fines in respect of the offences, as adjusted having regard to the principle of totality.

JUDGMENT

1. N ADAMS J: I have had the advantage of reading the reasons of Cavanagh J in draft. I agree with the orders proposed by his Honour for the reasons provided. I wish, however, to add some additional reasons as to why I am satisfied that the correction of the sentence by Duggan J was permissible in this matter.

2. Although the Uniform Civil Procedure Rules (UCPR), including Part 36, do not apply to criminal prosecutions in the Local, District or Supreme Court in NSW, they expressly apply to Class 5 prosecutions in the Land and Environment Court by virtue of rr 5.1 and 5.2(2)(h) of the Land and Environment Court Rules 2007 (NSW). That being the case, I agree with Cavanagh J that the only avenue for the correction of error post-sentence in this matter was UCPR r 36.17 which is headed “Correction of judgment or order (“slip rule”)”. As that heading suggests, the “slip rule” only applies to correct errors where there has been an accidental slip or omission, including arithmetic error. A central question in this appeal was whether the sentencing judge had made an arithmetic error in her application of the totality principle (as the prosecution contended) or whether the original sentence was what was intended and her Honour had, effectively, re-sentenced the applicants (as the applicants contended).

3. The sentencing judge indicated the fines her Honour proposed to impose at [74] of the sentencing reasons. Her Honour then went on (at [76]-[80]) to discuss the application of the totality principle, observing (at [78]) that it was appropriate to leave questions of totality to the end of the sentencing process and “apply a final check of the aggregate sum of the fines proposed to be imposed against whether it is a just and appropriate penalty for the entire criminality”. At [80], her Honour expressly stated her intention: to apply a 50% reduction to the “Take Water Offences” to reflect the application of the totality principle. Her Honour then went on (at [81]) to apply a 50% reduction to all of the fines she had foreshadowed (at [74]).

4. I am satisfied that the orders made by her Honour on 27 March 2024 did not reflect her stated intention with respect to the application of the totality principle. In correcting that error under UCPR r 36.17, the sentencing judge was not required to exercise a discretion or undertake an evaluative exercise. In other words, there was no “re-sentencing” of the applicants.

5. CAVANAGH J: Pursuant to s 5AB of the Criminal Appeal Act 1912 (NSW), the appellants, Jindalee Road Wines Pty Ltd (“Jindalee Road”) and David Alan Littore (“Mr Littore”), appeal against the sentences imposed upon them by Duggan J in the Land and Environment Court on 27 March 2024.

6. Her Honour originally sentenced the appellants on 27 March 2024 but subsequent to a motion filed by the prosecutor (the respondent) pursuant to r 36.16, or alternatively r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), her Honour amended the orders on 16 October 2024 having regard to what her Honour accepted was an inadvertent slip or error in her original sentencing judgment.

| Offender | Section / short description | Max Penalty | Sentence | | Mr Littore | WM Act, s 342(1)(a) – Premises 1 Infrastructure Offence | $500,500 | Fine of $135,000 | | Mr Littore | WM Act, s 343(1) – Premises 1 Take Water Offence | $500,500 | Fine of $37,500 | | Mr Littore | WM Act, s 342(1)(a) – Premises 2 Infrastructure Offence | $247,500 | Fine of $60,000 | | Mr Littore | WM Act, s 343(1) – Premises 2 Take Water Offence | $500,500 | Fine of $37,500 | | Total (Littore) | Fines totalling $270,000 | | Jindalee Road | WM Act, s 342(1)(a) – Premises 1 Infrastructure Offence | $2,002,000 fine | Fine of $375,000 | | Jindalee Road | WM Act, s 343(1) – Premises 1 Take Water Offence | $2,002,000 fine | Fine of $22,500 | | Jindalee Road | WM Act, s 342(1)(a) – Premises 2 Infrastructure Offence | $1,100,000 fine | Fine of $187,500 | | Jindalee Road | WM Act, s 343(1) – Premises 2 Take Water Offence | $2,002,000 fine | Fine of $22,500 | | Total (Jindalee Road) | Fines totalling $607,500 |

10. Both Jindalee Road and Mr Littore now appeal from the fines imposed upon them. In fact, each appellant pursues two appeals – one from the original sentence of 27 March 2024 and the other from the subsequent decision of 16 October 2024.

11. In respect of the original decision (the first appeal), the grounds of appeal are as follows:

12. “The aggregate penalty imposed by the Land and Environment Court of NSW, in the sum of $498,750, was manifestly excessive.

13. The Trial Judge did not apply the principle of totality to the offending of each offender at both premises.

14. The Trial Judge failed to have regard to the parity principle as it relates to the co-defendants.

15. The Trial Judge failed to consider the volume of water taken and its value as a mitigatory factor in the sentencing for the water take offences.”

16. In respect of the second decision (the second appeal), both appellants appeal on the following basis:

17. “The Trial Judge lacked power to adjust the sentence by way of increase pursuant to rr 36.16 and 36.17 of the UCPR, as those rules were to be construed in accordance with the clear statement of principle (the principle of legality) and what occurred was contrary to the principle of double jeopardy.

18. The Trial Judge erred in finding that what occurred in the Second Judgment was not a re-sentencing contrary to the double jeopardy principle, but merely a correction of error in the calculation of the penalties to be imposed.

19. The Trial Judge’s discretion to vary the original fines imposed miscarried and was unreasonable and plainly unjust and affected by an error of principle causing substantial injustice, contrary to House v The King [(1936) 55 CLR 499; [1936] HCA 40 (“House v The King”)].

20. The overall sentence imposed, being $780,000, is manifestly excessive and disproportionate to the total criminality involved in the offending.”

Background

13. The parties relied on an extensive Statement of Agreed Facts filed on 18 August 2023. The sentencing judge adopted those agreed facts in her judgment. The parties do not dispute the factual findings for the purposes of this appeal.

14. At the time of the offending, Jindalee Road operated a farm/vineyard at premises both at 111 Bernarra Road, Coomealla (Premises 1) and 325 River Road, Coomealla (Premises 2) in the Riverina District of New South Wales. Jindalee Road leased the premises and generally paid for water which was delivered for use for irrigation purposes in accordance with the water delivery agreements.

15. Jindalee Road was a company owned and operated by the Littore family. David Littore (Mr Littore) was not a director of the company but was employed as the farm manager.

16. He was responsible for general cropping duties and management of other workers on both premises, including all matters relating to the irrigation of the wine grape crops. Each of the premises are situated within the Coomealla irrigation district and were supplied with water by Western Murray Irrigation Limited (“WMI”).

17. The offences occurred at Premises 1 and Premises 2. At the time of the offending Jindalee Road was a lessee of both Premises 1 and 2. It paid electricity costs associated with the use of the premises.

18. WMI is a non-profit organisation which supplies waters to its customers. WMI has ownership, control and management over infrastructure which supplies water to the points of supply on individual properties, including the main supply lines, meters, and valves. WMI has over 450 customers across several irrigation districts who are supplied water from one of the three irrigation supply systems operated by WMI.

19. WMI outlet 23431 is on and irrigates Premises 1 and also irrigates another farm. WMI outlet 23571 was physically located on Premises 2. It irrigated Premises 2 and also another farm.

20. A Water Allocation Account (“WAA”) is the means through which water is allocated amongst different farms owned by the same legal entity. The owner of Premises 1 held a WAA with WMI for Premises 1. The owner of Premises 2 held a joint WAA with WMI for Premises 2. Jindalee Road paid for the water delivered by WMI and used on Premises 1 and 2.

21. Sometime between 30 May 2019 and 31 October 2019, Mr Littore installed or permitted to be installed a pipe to the WMI irrigation supply pipeline and a stainless-steel manifold located near the pump shed on Premises 1, which connected to irrigation infrastructure at a point downstream from the WMI outlet meter with the intention to bypassing the WMI meter.

22. He also installed or permitted to be installed a meter pump, which allowed the water to be pumped from the infrastructure. Water taken through the bypass infrastructure was capable of being measured by a private meter installed at a point downstream from the WMI meter. The operation of the bypass infrastructure enabled the appellants to take water from the WMI supply pipeline without it being metered at the WMI outlet meter.

The sentencing judgment

37. The sentencing judgment is dated 27 March 2024.

38. The facts found by the sentencing judge were consistent with the agreed facts and consistent with the overview which I have provided.

39. In particular, the sentencing judge found that Mr Littore was the farm manager for Jindalee Road and responsible for water and management of workers at both premises.

40. Further, he was either directly responsible for the interference with WMI’s works, or he caused, or counselled or procured another or others to carry out the interference. Because he caused, counselled or procured the interference, he was aware of the tap-ins before their discovery in March 2020 and had utilised the bypass infrastructure to take unmetered water with the intention that Jindalee Road would not have to pay for the water taken unmetered.

41. Her Honour made further findings as to the involvement of Jindalee Road, particularly having regard to Jindalee Road’s response to the statutory notice issued to it.

42. After setting out the relevant provisions, the purposes of sentencing and the provisions relating to aggravating and mitigating factors, her Honour turned to the objective seriousness of the offences.

43. Her Honour observed that it was an agreed fact that the physical actions relating to the Infrastructure Offences and the Take Water Offences were undertaken by Mr Littore and that Jindalee Road’s culpability arises from its employment of Mr Littore and the responsibility it takes for the actions of its employee.

44. Her Honour considered that the objective gravity of the offences is to be judged by two principal components, being the precise acts or omissions of the offender and the consequences of those acts or omissions (Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [22]).

45. Her Honour observed that each of the offences are strict liability offences, and the maximum penalties serve as an indication of the seriousness with which Parliament views the particular offences. Each of the offences is a Tier 2 offence under the WM Act, for which the maximum penalty was 4,550 penalty units ($500,500) in the case of an individual and 18,200 penalty units ($2,002,000) in the case of a corporation.

46. As the Infrastructure Offences relating to Premises 2 took place prior to 27 June 2018, the maximum penalties which applied for a Tier 2 offence at that time were $247,500 for an individual and $1,100,000 in the case of a corporation.

47. Her Honour accepted both that the conduct was intentional rather than inadvertent or negligent and that it involved a level of sophistication. There was a degree of planning. Although planning is not a necessary element of the offence, her Honour was satisfied that the criminal conduct was part of a planned or organised activity and should be considered as an aggravating feature of the offending.

| Premises 1 Infrastructure Offence – Mr Littore | $180,000 less 25% (early plea) = $135,000 | | Premises 1 Take Water Offence – Mr Littore | $100,000 less 25% (early plea) = $75,000 | | Premises 2 Infrastructure Offence – Mr Littore | $80,000 less 25% (early plea) = $60,000 | | Premises 2 Take Water Offence – Mr Littore | $100,000 less 25% (early plea) = $75,000 |

| Premises 1 Infrastructure Offence – Jindalee Road | $500,000 less 25% (early plea) = $375,000 | | Premises 1 Take Water Offence – Jindalee Road | $60,000 less 25% (early plea) = $45,000 | | Premises 2 Infrastructure Offence – Jindalee Road | $250,000 less 25% (early plea) = $187,500 | | Premises 2 Take Water Offence – Jindalee Road | $60,000 less 25% (early plea) = $45,000 |

64. Her Honour then considered the principle of totality. I will return to this later in my judgment, but her Honour stated at [80]-[81]:

“[80] Having regard to the circumstances of this case, I consider the Infrastructure Offences to be of greater objective seriousness and observe that the Take Water Offences were facilitated by the infrastructure works such that a lesser penalty is appropriate for the Take Water Offences. Due to the amount of overlap between the Infrastructure Offences and Take Water Offences, I consider that a reduction in the quantum of the Take Water Offences in the sum of 50% adequately reflects the totality of the entire criminality.

[81] Taking into account all of the matters outlined herein, the Court orders: …”

65. She then varied the amounts referred to in paragraph [60] above and imposed the following fines by way of sentence:

66. Mr Littore:

(a) Premises 1 - Infrastructure Offence - $67,500; (b) Premises 1 - Take Water Offence - $37,500; (c) Premises 2 - Infrastructure Offence - $30,000; (d) Premises 2 - Take Water Offence - $37,500.

2. Jindalee Road:

(a) Premises 1 - Infrastructure Offence - $187,500; (b) Premises 1 - Take Water Offence - $22,500; (c) Premises 2 - Infrastructure Offence - $93,750; (d) Premises 2 - Take Water Offence - $22,500.

The decision on the motion

66. On 10 April 2024, the prosecutor filed a notice of motion (“the motion”) seeking orders as follows:

“Pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005, the Court either:

a. vary orders 1(b), 2(b), 5(b) and 6(b), entered on 27/03/2024, to reflect the approach set out at paragraph [80] of the Court’s judgment; or

b. vary the judgment at paragraphs [74] and/or [80] to reflect the terms of orders 1(b), 2(b), 5(b) and 6(b).”

67. The motion was not heard until 7 August 2024.

68. At the commencement of the hearing the prosecutor indicated that reliance was also placed on UCPR, r 36.17.

69. In support of the motion, the prosecutor relied on the affidavit of Ryan James Graham, a solicitor employed by the Crown Solicitor’s Office, who acts as solicitor for the prosecutor, dated 5 April 2024.

70. Mr Graham referred to paragraph [80] of the sentencing judgment dealing with totality and noted that her Honour appeared to have reduced all the fines by 50% rather than merely the Take Water Offences.

71. Her Honour delivered judgment on 16 October 2024.

72. Her Honour accepted that there had inadvertently been a reduction in the quantum of all of the fines by 50% for totality, when it was only intended that the reduction be applied to the Take Water Offences.

73. Her Honour rejected the appellants’ contention that the opening words of paragraph [81] of the sentencing judgment indicated a contrary intention.

74. In the circumstances, her Honour accepted there was a readily identifiable and inadvertent error in the calculation of the fines insofar as they were less than the amount of the fines she intended to impose.

75. The appellants disputed that the Court had the power to amend the judgment submitting that such an error was only reviewable by the Court of Criminal Appeal and that the sentencing decision was the product of a deliberate decision by the Court which could not be changed by the motion.

76. Her Honour rejected the suggestion that the amendment required the exercise of a further discretion and rejected the submission that the orders sought were beyond the application of UCPR, rr 36.16 or 36.17.

77. Her Honour rejected the submission that rr 36.16 and 36.17 could not apply to the exercise because of the principle of double jeopardy.

78. Her Honour accepted that the final orders did not reflect her reasoning and that they demonstrated error. The process did not require a reconsideration of sentencing considerations or the undertaking of the instinctive synthesis of those considerations. It required only an arithmetic calculation.

79. In the end, her Honour accepted that the orders should be amended finding that it was important that the record accurately reflected the sentence that was intended to be imposed. Recording of sentences are important not only to the defendants in the proceedings but also to deter other people from committing similar offences and to inform other judicial officers of patterns in sentencing.

80. In the circumstances, her Honour made orders varying the original orders and substituting the new amounts as follows:

Ground of appeal 1 in the second appeal

82. It is appropriate to deal firstly with the appellants’ challenge to the power of the sentencing judge to vary or amend the original orders as set out in the second decision. This is because, if her Honour lacked power, the appellants’ complaint about the amounts of the fines could only be in respect of the amounts specified in the original orders.

83. The power of courts to reopen proceedings and amend or vary orders already made and entered is constrained by the principle of finality. In Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 (“Burrell”) at [15], the Court (per Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ) cited D*’*Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34]:

“A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.”

84. The finality principle protects parties from attempts to reagitate matters that have already been determined (Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 (“Achurch”) at [15]). Similarly, the principle of finality informs the construction of any statutory provision purporting to permit the Court to reopen proceedings and amend orders after entry of the orders of judgment.

85. Having said that (as again explained in Burrell at paragraphs [21]-[22]), the power to correct the record or an error arising from an accidental slip or omission does not offend the principle of finality. This is because the correction of such an error is permitted to ensure that the judgment reflects only what the judge intended.

86. The essential issue raised under this ground of appeal is whether the effect of the decision on the motion is not merely that an accidental slip or error has been corrected but that that the appellants have been impermissibly resentenced.

87. The appellants submit that the relevant rule, being the Land and Environment Court Rules 2007 (NSW) (“LEC Rules”), Pt 5, r 5.2(2)(h) which incorporates UCPR, Pt 36 (including the slip rule) into Class 5 criminal proceedings, should be construed in accordance with the principle of legality (see X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 and Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39).

88. The simple point made by the appellants is that the LEC Rules (which are procedural in nature) should not be construed in such a way to offend the fundamental right of an offender not to be sentenced more than once for the same offence.

89. In this regard, the inclusion of the phrase “so far as applicable” is said to demonstrate an intention to limit the application of Pt 36 to circumstances which would not offend essential principles, such as the rule against double jeopardy.

90. The respondent submits that the wording in Pt 5 of the LEC Rules is clear and unambiguous. UCPR, Pt 36 is incorporated into the rules governing Class 5 proceedings in the Land and Environment Court. The calculation error in the sentencing judgment is evident and is the sort of error intended to be capable of correction through UCPR, Pt 36. The respondent points to other Class 5 cases in the Land and Environment Court where the slip rule has been applied, albeit there was no opposition to the application of the rule in those cases (see Chief Executive, Office of Environment and Heritage v Ausgrid (No 2) [2013] NSWLEC 63 at [9]; Environment Protection Authority v Truegain Pty Limited (No 5) [2014] NSWLEC 184 at [13], [16]).

91. Further, the respondent contends that a variation or amendment of orders in accordance with rr 36.16 and 36.17 does not constitute a resentencing such that varying or amending the orders does not offend the principle of double jeopardy. The phrase “so far as applicable” merely highlights what is apparent from a consideration of all the civil procedure rules incorporated into Land and Environment Court proceedings in its criminal jurisdiction, that is, not all of the incorporated rules could be applicable to each class of proceedings.

Determination

92. Rule 5.2(2) of the LEC Rules is in the following terms:

The following provisions of the Uniform Civil Procedure Rules 2005 apply, so far as applicable, to proceedings to which this Part applies—

(a) Part 1 (Preliminary), other than rules 1.10, 1.10A and Division 4,

(b) Part 2 (Case management generally),

(b1) Part 3 (Electronic case management),

(c) Part 4 (Preparation and filing of documents), other than rules 4.2, 4.7A, 4.9 and 4.12,

(d) rules 6.15 and 6.16,

(e) Part 19 (Amendment),

(f) rules 31.3, 31.7, 31.11, 31.12, 31.21 and 31.22,

(g) rule 34.1,

(h) Part 36 (Judgments and orders), other than rule 36.11.

93. Part 5 applies to proceedings in Class 5, 6 or 7 of the Court’s jurisdiction. The sentence proceedings determined by her Honour were Class 5 proceedings. The Land and Environment Court is a court of statutory creation. Its criminal jurisdiction is governed by s 21 of the Land and Environment Court Act 1979 (NSW). This includes prosecution for offences contrary to environment and planning laws.

94. It follows that subject to any limitation imposed by the phrase “so far as applicable”, UCPR, Pt 36 may apply in Class 5 proceedings, even though the proceedings are criminal proceedings. The rules are incorporated into the criminal rules which govern the conduct of the proceedings.

95. UCPR, rr 36.16 and 36.17 are in the following terms:

36.16 Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9)

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2) The court may set aside or vary a judgment or order after it has been entered if—

(a) it is a default judgment (other than a default judgment given in open court), or

(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it—

(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or

(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.

(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).

(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.

36.17 Correction of judgment or order (“slip rule”) (cf SCR Part 20, rule 10; DCR Part 17, rule 10; LCR Part 16, rule 10)

If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.

96. Rule 36.15 provides a general power to set aside a judgment or order, on sufficient cause being shown, if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. That is not suggested in this matter. Rule 36.15 does not apply.

97. Further, although there is a reference to r 36.16 and a general analysis of the rule in the second decision, it could not apply.

98. Rule 36.16(1) could have no application as the orders were made prior to the application being made. None of r 36.16(2)(a), (b) or (c) apply. It was not a default judgment, it was not made in the absence of a party, and it is not a case involving proceedings for the possession of land.

99. That only leaves r 36.16(3). Whist that rule is expressed broadly, it should not be construed as to provide a power to set aside or vary any judgment or order without limitation or qualification. To do so would be contrary to the principle of finality.

100. The exceptions to the broad power set out in r 36.16(3)(a) are in specific terms. They are more applicable to civil rather than criminal proceedings. A sentencing judgment is not a judgment on a claim which determines any relief or questions arising on the claim for relief. In my view, the intent of r 36.16(3) is to provide a broad power to set aside existing orders that are not final in nature, that is, interlocutory orders.

101. In my view, only r 36.17 could have applied. Although her Honour referred to both rr 36.16 and 36.17 in discussing the relevant principles, her Honour’s reasons demonstrate an intention to apply what is conventionally known as the slip rule. As her Honour says at [14] of her judgment, “what is required is that a readily identifiable inadvertent error be identified.” This could only be a reference to r 36.17, that is, “arising from an accidental slip or omission”.

102. In Achurch at [18], the Court (per French CJ, Crennan, Kiefel and Bell JJ) observed (footnotes omitted):

“The slip rule as an aspect of the inherent or implied powers allows for limited correction of an order after its final entry, as was explained in Burrell:

‘The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.’ (footnote omitted)

The power conferred under the slip rule ‘is one to be exercised sparingly, lest it encourage carelessness by a party’s legal representatives and expose to risk the public interest in finality of litigation.’”

103. The purpose of the slip rule is to ensure that the orders of the Court truly represent what the Court intended to pronounce (Ainsworth v Wilding [1896] 1 Ch 673 at 678-679; Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642; [1906] HCA 71 at 669; see also Burrel**l at 225).

104. The orders made in the sentencing judgment did not reflect what her Honour intended. This is because the amount of the fines imposed upon the appellants did not represent what she intended having regard to paragraph [80] of the sentencing judgment.

105. Having indicated the fines she would impose on each appellant in respect of each offence, her Honour then went on to consider the principle of totality. I will come back to that principle when considering another ground of appeal but it is clear that her Honour intended to reduce only the amount of the Take Water Offences fines by 50% to reflect the principle of totality.

106. Unfortunately, the orders made did not reflect that reasoning or intention. The fines imposed reflected a 50% reduction in both the Take Water and Infrastructure fines. I do not accept the appellants’ contention that her Honour’s reasoning in the sentencing judgment is capable of some other construction or meaning.

107. This could only have been an error arising from an accidental slip in the calculation of the fines for the purposes of determining the final orders. Her Honour has used the slip rule (r 36.17) to correct an error in her calculations to make the orders consistent with what she intended.

108. In my view, except for the fact that these are criminal proceedings and the effect of her Honour’s decision on the motion is to vary the sentences imposed upon the appellants, there could not be any argument as to the application of r 36.17.

109. The question thus becomes whether there is any broader principle which might suggest that her Honour erred in accepting that the orders could be amended under r 36.17.

110. Three matters are highlighted by the appellants being:

111. The slip rule does not apply when the Court is required to exercise any discretion or make any evaluation or reconsider any finding;

112. In the criminal context, the slip rule cannot be invoked to correct an error in the sentencing judgment if the effect of the amendment is to resentence the offender; and

113. The words “so far as applicable” in LEC Rules, r 5.2(2) limit the incorporation of the slip rule if the application of the rule would offend any right or principle otherwise existing.

114. Whist there is merit in the appellants’ contentions as statements of principle, the effect of the decision on the motion is not as the appellants suggest for the following reasons.

“The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: cf Brew v Whitlock (No 3) (at 506). In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris (at 558) if the matter had been drawn to the court’s attention would the correction at once have been made?”

113. In the context of these proceedings, r 36.17 could not be used to correct or amend orders made if in deciding to vary the orders the judge was required to exercise a discretion or undertake an evaluative exercise.

114. In my view, for the reasons already set out, her Honour was not required to exercise any discretion or undertake any evaluative exercise in determining the motion. I thus do not accept the appellants’ contention to the contrary.

115. Secondly, as submitted by the appellants, the rule against double jeopardy prevents an offender from being sentenced twice for the same offence (see Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57).

116. Further, as has been emphasised by the High Court (see Lacey v Attorney*-*General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [18]-[19]), clear language will be required before any statute will be construed as effecting any fundamental operation of common law principles governing administration of justice to the detriment of any offender.

117. It follows that, to the extent that her Honour engaged in the process of a reconsideration of sentencing factors and resentenced the appellants, clear language would be required to permit that process. It might be doubtful that a procedural rule could be used to so fundamentally alter the right of an offender not to be sentenced twice in respect of the same conduct.

118. Yet, in my view, this is not what has occurred.

119. An important aspect of the application of r 36.17 is that any amendment made pursuant to that rule takes effect from the date of the original order (see Storey at 453). The appellants did not come before the Court for the purposes of fixing a new sentence. The matter was relisted pursuant to a motion to amend an error apparent on the face of the sentencing judgment. The orders took effect from the date of the sentencing judgment.

120. Some analogy may be drawn between the obligations of the Court of Criminal Appeal in correcting errors raised on appeal. The obligation is generally to undertake the process of resentencing (see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”)) but there may be some errors which might be corrected in the Court of Criminal Appeal and do not require the Court to undertake the evaluative process of resentencing.

121. In Sausa v R [2023] NSWCCA 95, N Adams J (with whom Wilson J and I agreed) stated:

“[31] Counsel for the applicant submitted that it would be open to the court on resentencing the applicant to maintain the aggregate head sentence and vary the non-parole period to reflect the intention of the sentencing judge. The Crown accepted that this was an appropriate way to dispose of the appeal.

[32] Usually, if error is established in the sentencing process the court is required to resentence the applicant afresh: Kentwell. Despite this, there will be some appeals in which the nature of the error is such that a variation can be made to the sentence to correct the arithmetical error below.

[33] In Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 (“Lehn”) the court sat a five judge bench to consider the scope of Kentwell and, in particular, what sort of discrete errors do not require the court to re-sentence afresh. The court observed that when re-sentencing an applicant where the error is in respect of ‘a discrete part of the process,’ it is still necessary for this court to form its own view of the appropriate sentence. As Bathurst CJ, with whom Beazley P and Schmidt J agreed, stated at [68]:

‘… It seems to me that if there is an error which affects the exercise of the sentencing discretion, the section requires the court to form its own view of the appropriate sentence…’

[34] Despite this, it was noted by the court in Lehn that there may be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. An example provided by Bathurst CJ at [72] was when an arithmetical error has occurred, the extent of which can be properly determined.

[35] I am satisfied that the error established in this matter is an arithmetical one the extent of which can be properly determined such that it is not necessary for this court to exercise the sentencing discretion afresh.”

122. This issue was again considered in JA v R [2024] NSWCCA 130.

123. There have been some conflicting views on the issue but as the judgment of N Adams J (whose observations Huggett J agreed with) again makes clear (at [46]-[50]), there is no need to resentence when the error is arithmetic only. The error can be corrected without re-exercising the sentencing discretion.

124. In any event, I mention this approach only be way of analogy.

125. The correction of error on appeal involves consideration of different statutory provisions but the point is that not every correction of error necessarily involves the re-exercise of the sentencing discretion or reconsideration of relevant sentencing factors. Some errors can be corrected merely by correcting the arithmetic.

126. Having said that, and in circumstances in which I consider that the slip rule (r 36.17) was properly applied to correct the original error, the ultimate question becomes whether the intention of Parliament as expressed in r 5.2(2) of the LEC Rules was to permit the use of the slip rule to correct an error, even in the sentencing process.

127. Firstly, there can be no doubt that the intention was to incorporate UCPR, Pt 36 as a rule in criminal proceedings in the Land and Environment Court because each of Classes 5, 6 and 7 are criminal proceedings. Having regard to the specific reference to UCPR, Pt 36 in r 5.2(2) of the LEC Rules, it must be that the Parliament intended that the slip rule could be applied even in criminal proceedings in some circumstances.

128. The question is whether the limitation through the words “so far as applicable” indicates an intention that the slip rule is not available to any error in the sentencing process, even an arithmetical error.

129. The parties take different positions.

130. On the appellants’ contention, whilst Pt 36 might be applicable to some aspects of Class 5, 6 and 7 proceedings, it could not be applicable to sentence proceedings. The appellants submit that once it is recognised that an error in sentence can only be corrected by the Court of Criminal Appeal, it must be that the Land and Environment Court does not have the power to correct its own errors in the sentencing process. If it be to the contrary, the Land and Environment Court would have a power not otherwise available in any other jurisdiction.

131. The respondent submits that the words “so far as applicable” relate to the capacity for the application of the rule to be applied in the particular circumstances of the proceedings. In other words, the rules apply to the extent they are capable of application. If they are not capable of application, then they do not apply. On the respondent’s case, this accommodates the fact that some rules will be of application in certain proceedings and not others.

(1) The following provisions of the Uniform Civil Procedure Rules 2005 apply, so far as applicable, to proceedings specified in the Third Schedule to the Act […] and to proceedings to which Division 2 applies…

136. Johnson J held that the words did not operate to limit the application of the civil procedure rules (as expressly incorporated) to those criminal proceedings, accepting that the words “so far as applicable” ought to be given a wide construction and would not permit a contextual appraisal of the suitability of the application of any particular section (referring to Fleming v White (1981) 2 NSWLR 219 (“Fleming”) at 721-725; Epacris Pty Limited v Director-General, Department of Natural Resources (2007) 69 NSWLR 507; [2007] NSWCCA 76 at [69]).

137. His Honour adopted the approach of Street CJ (with whom Hope JA and Nagle CJ at CL agreed) in Fleming *(*at 722) as follows:

“The only limitation upon the operation of s 3 is that the sections shall be in force ‘so far as their provisions can be applied’. It will be noted that this phrase is absolute: there is no modification of the predicate such as would permit contextual appraisal of the suitability of the application of a given section in a particular court.”

138. I see no reason to depart from the approach set out in these earlier cases. In my view, the words “so far as applicable” do not provide a contextual limitation to the operation of the rule. They merely accommodate the fact that not every civil rule incorporated into criminal proceedings could apply to all proceedings.

139. That is not to say that Pt 36 itself should be construed as applying so broadly so as in some way to permit resentencing contrary to ordinary common law principles. Part 36 should be applied cautiously and sparingly. It should only be applied when the error is apparent on the face of the judgment and in circumstances in which no reconsideration of relevant sentencing factors or a discretionary exercise is required.

140. In my view, the words “so far as applicable” do not preclude the application of the slip rule (as expressly incorporated into the rules governing Class 5 proceedings in the Land and Environment Court) to correct merely inadvertent arithmetical errors even in a sentencing judgment. The fact that the ability to correct such errors in other jurisdictions is not permitted does not mandate a different approach to the ordinary meaning of r 5.2(2) of the LEC Rules or a different approach to r 36.17 of the UCPR.

141. Ground 1 in the second appeal fails.

142. It follows that the decision on the motion was correct with the effect that the amounts of the fines are those set out in the sentencing judgment as amended by the orders on the motion.

143. I will now deal with the other grounds of appeal.

Ground of appeal 2 in the first appeal – Totality

144. Her Honour was aware of the importance of applying the principle of totality. She dealt with it at [76]-[80] of the sentencing judgment.

145. Acknowledging that she should leave questions of totality to the end of the sentencing process, her Honour considered how the totality principle should be applied in the particular circumstances and reduced the amount of the Take Water fines for each appellant. In doing so, her Honour considered whether the level of fines was just and appropriate (ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4; (2024) 260 LGERA 358 (“ACE Demolition”) at [111]).

146. Her Honour’s findings on totality are set out in paragraphs [79]-[80] as follows:

“[79] As outlined above, the elements of each offence as relate to each offender are co-incident with respect to the conduct and circumstances giving rise to the commission of each offence and the consequence of each offence, such that the application of the sentencing principle of totality is appropriate to be applied in the circumstances of this case. I consider that the offending conduct for each separate premises are not co-incident and should be considered as appropriate for the application of the principle of totality.

[80] Having regard to the circumstances of this case, I consider the Infrastructure Offences to be of greater objective seriousness and observe that the Take Water Offences were facilitated by the infrastructure works such that a lesser penalty is appropriate for the Take Water Offences. Due to the amount of overlap between the Infrastructure Offences and Take Water Offences, I consider that a reduction in the quantum of the Take Water Offences in the sum of 50% adequately reflects the totality of the entire criminality.”

147. The appellants challenge these findings submitting:

148. The principle of totality requires that the sentencing judge assess the overall criminality “in a broad sense”, avoiding the straightforward arithmetical addition of sentences appropriate for each individual offence (R v Holder (1983) 3 NSWLR 245 at 260 per Street CJ).

149. The sentencing judge erroneously equated the objective to be achieved by totality with the avoidance of double counting or double punishment. The principle is not so limited (see Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 per Gleeson CJ).

150. The sentencing judge failed to apply the principle of totality to all of the offences on the basis that the offending at different premises was not coincident.

151. The respondent responds in four ways, submitting:

152. There is no mandated approach in determining whether sentences ought to be imposed consecutively or concurrently (Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] per Howie J, Adams and Prost JJ agreeing). Further, the principle of totality applies even in the case of fines (Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (“Camilleri’s Stock Feeds”) at 704). The Court must take care to avoid any suggestion that it is offering some kind of discount for multiple offending (R v M*.A.K.,* R v M*.S.K.* [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18] per Spigelman CJ, Whealy and Howie JJ).

153. The approach was open bearing in mind that the offending occurred at different premises, took place years apart and involved separate deliberate acts. Further, as submitted orally, her Honour’s reference to “[h]aving regard to the circumstances of this case” means that her Honour has assessed the total criminality involved before determining the approach which she ultimately adopted.

154. Her Honour raised her intended approach directly with the appellants’ Counsel on sentence and the appellants’ Counsel did not take issue with that approach.

The issue was raised as follows:

“Her Honour: And the last thing I wanted to ask you was about totality. It seems to me that with the circumstances of this case, the higher degree of criminality is in relation to the infrastructure offences, that take water couldn’t have happened without the infrastructure so if I was going to make some accommodation for totality, it would be in relation to the fine for the take water rather than the infrastructure, do you accept that?

[Counsel]: Yes. I would agree your Honour. Totality is a little bit different in the context of fines which we acknowledge.”

The respondent submits that an appeal to this Court is not an occasion to reformulate the submission that could have been put in the court below (Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 (“Zreika”) at [81] per Johnson J (McLellan CJ at CL and Rothman J agreeing)).

4. The finding that the offending on different premises was not coincident was a factual finding and can only be challenged by establishing House v The King error.

Determination

149. Before considering the issues of principle, I will deal with the two other contentions raised by the respondent.

150. It is not necessary in this appeal to embark upon the consideration of the test to be applied on challenging a factual finding on appeal, that is, whether the appellants must establish that the finding was not open or whether the correctness standard applies. That is because her Honour’s statement that the offending conduct for each separate premises was “not coincident” could hardly be the subject of the challenge.

151. The offences were carried out in different places at different times. I take her Honour’s statement as to not being coincident as being a reference to different times and places.

152. Further, the contention that the issue was raised by the sentencing judge is not a bar to the ground of appeal. It may be that Counsel did not challenge the validity of the sentencing judge’s approach but Counsel’s response does not indicate an anticipation of precisely how her Honour would apply the principle and must be viewed in the context of Counsel’s acknowledgment that “totality is a little bit different in the context of fines”.

153. Apart from anything else, her Honour did not explain that she would be treating each premises separately. This is not a case in which the appellants are seeking to pursue different arguments from those pursued in the court below or to reformulate the case presented. Counsel’s agreement to the general proposition put by the sentencing judge does not preclude the appellants from submitting in this Court that her Honour erred in the approach to totality. The principle referred to in Zreika is not applicable in the circumstances of this matter.

154. That only leaves the contrary submissions of the parties on the proper application of the principle of totality.

155. Firstly, I do not accept the construction of paragraphs [79] and [80] of the judgment advanced by the respondent. In my view, there is only one construction available and that is that her Honour considered totality separately for each of the premises. She did not stand back and look at the total of the fines for all four offences. She looked at the total of the fines for the two offences on each property. She then reduced the amount of the fines for the Take Water Offences to ensure that the total at each property reflected the overall criminality at each property. The rest of my judgment proceeds on that basis.

156. There may be flexibility in how to apply totality, but the principle itself is constant. The Court explained in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 (per Wilson, Deane, Dawson, Toohey and Gaudron JJ) at 63 (adopting a statement from DA Thomas, Principles of Sentencing (2nd ed, 1979, Heinemann) at 56-57) as follows:

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[‘]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”

157. Totality is usually considered in the context of accumulation and concurrency of prison sentences but it has no lesser application in respect of fines (Camilleri*’*s Stock Feeds at 704, EPA v B**arnes [2006] NSWCCA 246 at [43]-[50]).

158. In circumstances in which the offending involves multiple offences being committed by the one offender, it remains necessary for the sentencing judge, once the particular fine for each offence has been determined, to stand back and assess whether the total of the fines reflects the total criminality of all of the offending conduct.

159. In E**PA v B**arnes, the Court (per Kirby J, Mason P and Hoeben J agreeing) said at [49]:

“Dealing with these arguments, the totality principle clearly had application. Her Honour was sentencing for two offences. It was not simply a matter of fixing a fine for each offence. Her Honour was obliged to review the aggregate and consider whether it was just and appropriate, as a reflection of the criminality overall. That may require some moderation of the sentences imposed in respect of each offence.”

160. The principle of totality is at least in part based on the need to ensure that the sentences inflicted for individual crimes do not lead to a crushing result (Postiglione v T**he Queen (1997) 189 CLR 295; [1997] HCA 26 (“Postiglione”) per McHugh J at 308). Of course, its application must also not detract from the necessity to ensure that the punishment imposed on an offender in respect of each offence is an appropriate reflection of the gravity of the offending conduct.

161. It is apparent that the sentencing judge was aware of the need to have regard to the totality principle as the final step in the sentencing process.

162. However, having regard to the appellants’ submissions, there remain two issues for consideration, being:

163. Whether the approach of her Honour in applying a mathematical adjustment was permissible; and

164. Whether her Honour should have assessed the total of all fines imposed on each appellant rather than looking at each premises separately.

165. In my view, there is nothing inherently wrong with the arithmetical approach in a case involving fines. Her Honour has sought to explain in monetary terms why she was reducing the fines in respect of at least some of the offences. It was appropriate to indicate how she was reducing the total of the fines having regard to totality. Applying a percentage discount to one of more fines so as to adjust the total may be appropriate, albeit a broad based discount across all fines might ensure that no individual fine is reduced to such a level as to not reflect the particular offending conduct.

166. Nothing said in ACE Demolition leads to the conclusion that an arithmetical approach is impermissible.

167. In circumstances in which a sentencing judge must be given as much flexibility as possible and where the ultimate question is (as applied to fines) how much money should the offender be required to pay in respect of all of the offending, the approach of the sentencing judge in identifying why she was reducing the fines in respect of two individual offences and by how much was not of itself in error.

168. That only leaves the remaining question whether her Honour erred in treating the conduct at each premises separately when considering totality.

169. The problem is that when sentencing each offender for multiple offences, her Honour has proceeded on the basis that totality only applies to offending arising at the same time and place. Her Honour’s finding that the offending at the different premises was not coincident could only mean that it happened at different times and places and thus did not arise out of the same course of conduct.

170. In my view, the application of totality is not so limited. It may apply to offences committed over a long period at different places and even involving different victims. Again, this must be apparent from a wide range of cases including cases in which there may be multiple victims and the offences happened at different times and/or places. The Court is required to stand back and assess the total of all of the sentences to consider whether the total is just and appropriate.

“Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences.”

173. Her Honour was required to fix a sentence in respect of each of the four offences with which each of the appellants was convicted and then look at the total of those four fines and ensure that the total was just and appropriate having regard to all of the criminality involved. Only by doing that could her Honour assess whether the total amount of the fines reflected the appropriate punishment and ensure that the total amount payable by each appellant was not disproportionate or crushing.

174. It follows that her Honour’s approach in dealing with totality only in respect of Premises 1 and then looking at it again only in respect of the fines in respect of Premises 2 was in error.

Ground of appeal 3 in the first appeal – Parity

175. It is well recognised that when sentencing co-offenders there should not be a marked disparity between the sentences imposed so as to give rise to a justifiable sense of grievance (Postiglione at 301-302 (per Dawson and Gaudron JJ), 309 (per McHugh J), 323 (per Gummow J), 338 (per Kirby J); see more recently, Mohr v R [2024] NSWCCA 197 at [14]-[24] (per Bell CJ, Davies and Wright JJ agreeing)).

176. Yet, this Court should be cautious before intervening on a parity appeal particularly when the sentencing judge has carefully considered the similarities and differences between co-offenders (Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [173] per Hoeben CJ at CL, Johnson and Schmidt JJ agreeing; Lloyd v R [2017] NSWCCA 303 at [94]-[95] per R A Hulme J, Payne JA and Garling J agreeing).

177. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, the Court (per French CJ, Crennan and Kiefel JJ) at [31] cited Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, and observed:

“…The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.” (footnotes omitted)

178. The appellants point to the different fines imposed upon Mr Littore and Jindalee Road for the same offences. They submit that this necessarily gives rise to a justifiable sense of grievance.

179. The appellants submit that:

180. Both were charged as principals.

181. The charges and particulars are identical except that in relation to Mr Littore, there is an alternative allegation that he breached s 343(1) of the WM Act by directly taking water.

182. The fact that the maximum penalties might have been different is not determinative and the conduct of Mr Littore and Jindalee Road was the same.

183. The respondent submits that:

184. The complaint could only relate to the fines imposed on Mr Littore for the Take Water Offences. Jindalee Road could hardly be complaining that it received a lesser fine than Mr Littore in respect of the Take Water Offences and Mr Littore could hardly be complaining that he received a lesser fine in respect of the Infrastructure Offences.

185. There is no articulated foundation of the complaint in respect to the Infrastructure Offences.

186. Whilst the fines imposed on Jindalee Road for the Take Water Offences were less, it was explicable having regard to the stronger subjective case and, in any event, the level of the fines was so low compared to the maximum that Mr Littore could hardly have a justifiable sense of grievance.

Determination

181. The sentencing judge did not refer to the importance of parity. Nor was it mentioned by the parties. That is not a bar to an appeal because an unjustifiable sense of grievance may not arise until the sentences are imposed.

182. Having said that, I do not consider that there is any merit in this ground of appeal.

183. I accept as submitted by the respondent that the appellants could only be complaining about the differences in the fines for the Take Water Offences. Further, Jindalee Road could not have a sense of grievance because its fines were less than Mr Littore.

184. This only leaves Mr Littore having a sense of grievance because he was fined more than Jindalee Road.

185. In my view, objectively assessed there could be no justifiable sense of grievance on the part of Mr Littore.

186. This is because, as determined by her Honour, there were some similarities but also significant differences in the subjective cases of each appellant. Firstly, whilst the offences are strict liability offences, the state of mind of the offender is relevant in determining sentence. Mr Littore’s conduct was planned, thought out and deliberate. While his aim was to obtain a financial benefit for Jindalee Road, his actions were done without the authority or knowledge of Jindalee Road. Jindalee Road is liable because Mr Littore’s conduct is attributed to it.

187. Further, it was Jindalee Road who purchased water on the temporary allocation market for the purposes of replacing the water which was taken. This was recognised by her Honour and, although not specifically expressed as a reason for the difference in the fines imposed, it provides the explanation for the difference. Objectively assessed, the lower fines imposed on Jindalee Road are explicable by the differences in their case. They do not give rise to a justifiable sense of grievance on the part of Mr Littore.

188. The appellants fail on this ground of appeal.

Ground of appeal 4 – Failure to consider volume of water taken as a mitigatory factor in the sentencing for the Take Water Offences

189. The sentencing judge referred to the amount of water taken and its value for the purposes of ensuring that no double penalty was being imposed but her Honour otherwise regarded the amount of water as being a neutral factor.

190. The appellants submit that her Honour’s imposition of identical fines for both appellants in relation to the Take Water Offences as between Premises 1 and Premises 2 must mean that her Honour failed to have regard to the amount of water taken as a mitigating factor.

191. As the appellants agreed during oral submissions, their reference to a factor in mitigation is not a reference to a failure to take account of any specific mitigating factor in accordance with s 21A(3)(a) of the Crime (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) but is reference to failing to have regard to the volume of water taken in the assessment of objective seriousness.

Determination

192. In my view, there is no merit to this ground of appeal.

193. Reading the sentencing judgment as a whole and having regard to the ordered way in which her Honour approached the sentencing process, it is evident that her Honour had regard to the quantity of water taken in assessing the objective seriousness of the offence. This is because under the heading in bold, “Objective seriousness of offence”, her Honour refers to a number of subcategories, one of which is the quantum of water. Having considered the quantum of water taken, her Honour then went on to find that neither the volume of water nor the market value taken were nominal and described it as a neutral factor in the determination of the objective seriousness of the offending conduct.

194. Yet, when referring to the Take Water Offences both at Premises 1 and 2 and assessing the objective seriousness, her Honour specifically stated that “[t]he resulting lesser objective seriousness to the infrastructure charge reflects the lack of evidence of environmental harm and the quantum of water taken.” Whilst her Honour did not expressly say so, the reference to the volume of water taken as impacting upon the finding of objective seriousness for the Take Water Offences (that is, a lesser level than the Infrastructure Offences) could only mean that her Honour had regard to the volume of water taken to the benefit rather than disadvantage of the appellants, in other words, in a mitigatory way.

195. For these reasons, this ground of appeal fails.

Manifest excess

196. As the appellants must be resentenced, it is not necessary to consider this ground.

Resentencing

197. The appellants have succeeded in establishing error on the part of the sentencing judge in the approach to totality but not otherwise. As error has been established it is necessary to resentence (Kentwell).

198. This requires this Court to undertake its own independent assessment of the relevant factors and impose sentences (in this case fines) that it considers appropriate. As part of that process, the Court may adopt the findings of the sentencing judge, particularly if there has been no challenge to those findings.

199. There was no challenge to the factual findings of the sentencing judge in these appeals, and I adopt those findings which were based on agreed facts in any event.

200. Further, leaving aside the questions relating to totality and parity, there was no challenge to any of the other findings of the sentencing judge, including as to objective seriousness and matters such as remorse and contrition. I have already outlined those findings in some detail in this judgment, and it is not necessary to repeat them. I adopt them for the purposes of resentence.

201. I must have regard to the purposes of sentencing as set out in 3A of the Sentencing Act. Further, in sentencing offenders in respect of offences under the WM Act, regard must be had to the objects of the WM Act as set out in s 3 as well as s 364A which lists a number of non-exclusive factors which the Court must have regard to in sentencing offenders for offences under the WM Act. The list of factors is not exhaustive as s 364A(2) provides that the Court may take into consideration other matters that it considers relevant.

202. Not all of the matters referred to in s 364A are relevant to the sentencing of the appellants. Some are of particular significance and there are also other matters not referred to in s 364A which I consider to be of importance in the exercise of instinctive synthesis which is the sentencing process.

203. It is important to observe at the outset that whilst there is obviously a close relationship between Mr Littore and Jindalee Road in the sense that, as described by the appellants, Jindalee Road is a family company and Mr Littore is a member of that family, Mr Littore and Jindalee Road are co-offenders and separate and distinct legal entities. Individualised justice requires that the sentence to be imposed on each of the appellants be considered and assessed individually and distinctly.

204. There is a significant overlap in the sentencing factors but their positions are not identical.

205. The offences with which the appellants have been convicted are strict liability offences. The conduct of Mr Littore is attributed to Jindalee Road as his employer. Attribution means that the conduct of the employee is attributed to the employer and the employer is responsible for it. However, it does not mean that the same fines must or should be imposed on the employee and the employer corporation.

| Premises 1 Infrastructure Offence – Mr Littore | $112,500 | | Premises 1 Take Water Offence – Mr Littore | $75,000 | | Premises 2 Infrastructure Offence – Mr Littore | $60,000 | | Premises 2 Take Water Offence – Mr Littore | $75,000 | | Total: | $322,500 | | Premises 1 Infrastructure Offence – Jindalee Road | $225,000 | | Premises 1 Take Water Offence – Jindalee Road | $45,000 | | Premises 2 Infrastructure Offence – Jindalee Road | $150,000 | | Premises 2 Take Water Offence – Jindalee Road | $45,000 | | Total: | $465,000 |

217. The final step in the process is to stand back and assess whether the total of the fines for each appellant is just and appropriate having regard to the level of criminality in all the circumstances of the case. In my view, it is appropriate to consider the total of the four fines for each offender. Regard must be had to the fact that the totals for each appellant reflect the discount for the early pleas.

218. For all the reasons I have already set out and having regard to totality, I consider it appropriate to reduce the fines so that the total of the fines is just and appropriate and reflects the overall criminality involved.

219. Any reduction can only be applied to the Infrastructure Offences as no lesser fines are warranted in respect of the Take Water Offences. The fines for the Take Water Offences will remain as determined by the sentencing judge. However, I propose to reduce the fines imposed for the Infrastructure Offences by 20% for both Mr Littore and Jindalee Road on account of totality.

220. I set out below a table representing my approach to resentencing in respect of each fine:

| Premises 1 Infrastructure Offence – Mr Littore | $90,000 | | Premises 1 Take Water Offence – Mr Littore | $37,500 | | Premises 2 Infrastructure Offence – Mr Littore | $48,000 | | Premises 2 Take Water Offence – Mr Littore | $37,500 | | Total: | $213,000 | | Premises 1 Infrastructure Offence – Jindalee Road | $180,000 | | Premises 1 Take Water Offence – Jindalee Road | $22,500 | | Premises 2 Infrastructure Offence – Jindalee Road | $120,000 | | Premises 2 Take Water Offence – Jindalee Road | $22,500 | | Total: | $345,000 |

221. In the circumstances, the orders I propose are:

222. Set aside the fines imposed on 27 March 2024 (as varied on 16 October 2024) and in lieu thereof, impose the following fines:

(a) David Alan Littore:

(i) In proceedings 2023/00078917, David Alan Littore is to pay a fine of $90,000; (ii) In proceedings 2023/00078918, David Alan Littore is to pay a fine of $48,000; (iii) In proceedings 2023/00078919, David Alan Littore is to pay a fine of $37,500; (iv) In proceedings 2023/00078920, David Alan Littore is to pay a fine of $37,500;

(b) Jindalee Road Wines Pty Ltd ACN 612 316 239:

(i) In Proceedings 2023/00078671, Jindalee Road Wines Pty Ltd ACN 612 316 239 is to pay a fine of $180,000; (ii) In Proceedings 2023/00078672, Jindalee Road Wines Pty Ltd ACN 612 316 239 is to pay a fine of $120,000; (iii) In Proceedings 2023/00078673, Jindalee Road Wines Pty Ltd ACN 612 316 239 is to pay a fine of $22,500; and (iv) In Proceedings 2023/00078674, Jindalee Road Wines Pty Ltd ACN 612 316 239 is to pay a fine of $22,500.

2. The parties should inform the Court within 7 days if any further orders are necessary at this time.

3. RIGG J: I agree with Cavanagh J and with the additional reasons of N Adams J.

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