On 27 March 2024, I determined the appropriate sentence to be imposed upon the Defendants with respect to the guilty pleas that each had entered with respect to eight charges arising under the WM Act. The reasons for the fixing of the sentence and the sentence imposed were published in Natural Resources Access Regulator v Jindalee Road Wines Pty Ltd; Littore [2024] NSWLEC 26 (Sentencing Decision).
The facts and the defined terms as provided in the Sentencing Decision are adopted here without repetition.
On 10 April 2024, the Prosecutor filed a Notice of Motion (Motion) relating to the Sentencing Decision seeking the following the orders:
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).
At the hearing of the Motion the Prosecutor also relied, in the alternative, upon the provisions of r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
The essence of the Motion is that the Prosecutor contends that I made an error in the numeric amount of the fine imposed in the orders in the Sentencing Decision insofar as it related to the four Infrastructure Offences. It contended that, upon a proper reading of the Sentencing Decision at [74], I determined the appropriate amount of the fines for the Infrastructure Offences. To the extent that I found that it was appropriate to make a reduction to the amount of any fines taking into account the principle of totality at [80], it was apparent that it was not intended that the Infrastructure Offences would be discounted. In considering the amount of the fines imposed upon the Infrastructure Offences at [81(1)(b), (2)(b), (5)(b) and 6(b)], it was apparent that such a reduction for totality had been applied to the Infrastructure Offences in error.
In the alternative, the Prosecutor submitted that if it was, in fact, intended that the Infrastructure Offences be reduced by the amount found at [80] that part of the Sentencing Decision that indicated that such a deduction would not be made should be corrected to reflect such a finding.
The Defendants opposed the making of the orders sought in the Motion as they contended that there was no such apparent error and that, by doing so, the Court would be offending the principle against double jeopardy.
In the alternative, the Defendants submitted that if there was power and an error found, the orders would not be made in the exercise of the Court's discretion.
[2]
Provisions of r 36.16 of the UCPR
The Motion seeks orders pursuant to the provisions of r 36.16 of the UCPR, which relevantly provides:
36.16 Further power to set aside or vary judgment or order
(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.
…
(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.
…
The Motion was filed within 14 days of the making of the orders and therefore is within the time provided for in r 13.16(3A) of the UCPR.
Part 5 of the Land and Environment Court Rules 2007 (LEC Rules) applies to Class 5 proceedings before the Court. Rule 5.2(2)(h) of the LEC Rules provides that Pt 36 of the UCPR (other than r 36.11) applies to Class 5 proceedings, so far as applicable. It has been accepted that r 36.16 of the UCPR is applicable to Class 5 proceedings before the Court: see Chief Executive, Office of Environment and Heritage v Ausgrid (No 2) [2013] NSWLEC 63.
Relevant principles applicable to the operation of r 36.16 of the UCPR were described as "well-understood" by Meagher and Brereton JJA in Johnston v The Greens NSW (No 2) [2021] NSWCA 291 at [8]. Their Honours described those principles as follows:
8 The power conferred by r 36.16 is to be exercised "sparingly and with caution" and "does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them": Majak v Rose (No 5) [2017] NSWCA 238 [(Majak v Rose)] at [12]-[13] (Leeming and Simpson JJA, Emmett AJA). The purpose of the power is "to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal": Majak v Rose at [12]; Owlstara v State of New South Wales (No 2) [2020] NSWCA 335 at [5]. "Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard": [Autodesk v Dyason (No 2) (1993) 176 CLR 300] at 302 (Mason CJ). However, as Mason CJ went on to explain (at 303), it may also be exercised where "the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and ... this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing".
It is the objective intention of the Court as discerned from the words of the judgment that is determinative: Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc and Others (2007) 70 NSWLR 411 (Newmont) at [91], [95], [102], [185] and [194].
Whilst r 36.16 of the UCPR is generally worded, what is required is that a readily identifiable inadvertent error be identified.
[3]
Was there a relevant error?
The parties agreed that, for the purposes of determining whether to make an order pursuant to r 36.16 of the UCPR, it is appropriate to consider the reasons in the Sentencing Decision in order to identify whether there was an inadvertent error rather than my personal recollection.
In determining the appropriate sentence to be imposed in respect of the various offences I found at [73]-[74] of the Sentencing Decision:
73 The appropriate sentence is to be derived by an "instinctive synthesis" of all of the relevant factors in order to determine an appropriate proportionate sentence: Markarian v The Queen (2005) 228 CLR 357.
74 Taking into account the objective seriousness of the charges and the factors identified above I have determined that the appropriate sentence in this case includes the imposition of a monetary penalty (in addition to the publication order and the additional orders relating to legal costs) in the following amounts:
Relevantly, in applying the principle of totality to the offences, I stated at [78] and [80] of the Sentencing Decision:
78 It is 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: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 at [111].
…
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.
I accordingly stated at [81] of the Sentencing Decision:
81 Taking into account all of the matters outlined herein, the Court orders:…
I thereafter imposed monetary penalties with respect to each charge at an amount representing 50% of the amount identified at [74] of the Sentencing Decision including with respect to the Infrastructure Offences.
From an objective reading of these parts of the Sentencing Decision it would appear that there has inadvertently been a reduction in the quantum of all of the fines by 50% for totality, when it was only intended that such reduction be applied to the Take Water Offences.
The Defendants submitted that the opening words of [81] of the Sentencing Decision indicate a contrary intention. It was contended that what those words indicated was a final application of the instinctive synthesis process which clearly produced a further reduction over the fines identified in [74] for the Infrastructure Offences.
I do not accept this analysis of the words used or the context indicated in the Sentencing Decision. It is apparent that the whole of the relevant sentencing considerations, with the exception of the application of the totality principle, had been addressed in [5]-[72]. At [73]-[75], the application of the instinctive synthesis was undertaken to produce the findings as to the quantum of the fines at [74]. As identified at [78], the issue of the application of the totality principle was considered and the relevant finding made that a reduction of 50% be applied to the Take Water Offences at [80]. To accept the Defendants' submission would require a finding of the meaning and application of the Sentencing Decision that was beyond power, in that it would be a decision that applied an instinctive synthesis process twice (at [73] and again at [81]) and made a further reduction in the penalty for the Infrastructure Offences without providing any reason for doing so.
Accordingly, I accept that based upon the reading of the Sentencing Decision there was a readily identifiable and inadvertent error in the calculation of the fines at [81(1)(b), (2)(b), (5)(b) and (6)(b)] insofar as they are less than the amount of the fine determined at [74].
[4]
Is the error amenable to the application of r 36.16 of the UCPR?
The Defendants submitted that the error identified above was not one amenable to the application of r 36.16 of the UCPR. The error was said to be one that was only amenable to consideration by the Court of Criminal Appeal in any appeal to it and not the Trial Judge, as the Sentencing Decision was the product of deliberate decision by the Court which was sought to be reviewed, rewritten or changed by the Motion.
The essence of the Defendants' argument was on two bases. First, that the correction of the error required a further exercise of the sentencing discretion or the discretion as to whether to make the orders sought in either of the alternatives posed in the Motion such that there was a choice to be made which is a discretionary one, thus exceeding the scope of r 36.17 of the UCPR: Newmont at [140], [142], [185] and [194].
As to this first basis, I do not consider that the fact that a discretion is to be exercised disqualifies the application of the relevant provisions of the UCPR as identified by the Prosecutor. Inherent in the application of either of the UCPR provisions is the exercise of a discretion as to whether to make the order sought. The relevant rules have been expressly adopted by the LEC Rules, thereby indicating that the existence of a discretion does not, of itself, disqualify the application of the UCPR to an error in sentencing.
To the extent that the Prosecutor in the Motion identifies alternative relief, the alternatives reflect the consequence of the identification of the nature of the error (if it exists) rather than the identification of the nature and scope of the error itself. Accordingly, I do not consider that the presentation in the Motion of the alternative relief, or the objective assessment of the existence of an error in the Sentencing Decision, beyond the application of the relevant rules of the UCPR.
Secondly, that rr 36.16 and 36.17 of the UCPR as adopted by r 5.2(h) of the LEC Rules are to be construed in accordance with the principle of legality: X7 v Australian Crime Commission (2013) 248 CLR 92 and Lee v New South Wales Crime Commission (2013) 251 CLR 196. The principle of legality has been succinctly stated by Deane J in Rohde v Director of Public Prosecutions (1986) 161 CLR 119 at 129, in a passage approved by six judges of the High Court in Lacey v Attorney-General (Qld) (Lacey) (2011) 242 CLR 573 at [18] as follows:
[T]hat established principle of construction extends to require clear and unambiguous words before a statute will be construed as effecting, to the detriment of the subject, any fundamental alteration to the common law principles governing the administration of justice.
Contrary to such principle in this case there is no clear or express language in rr 36.16 or 36.17 of the UCPR applying their provisions to the adjustment (including by way of increase) of a penalty or sentence, or displacing the principle of double jeopardy.
The principle of double jeopardy extends not only to the determination of guilt or innocence but also to the quantification of sentence: Lacey at [17]-[19]. Accordingly, the double jeopardy principle precludes the re-sentencing (sentencing a second time) of a convicted person: Green v R; Quinn v R (2011) 244 CLR 462 (Green) at [25]. The rule against re-sentencing is founded on deep rooted notions of fairness and decency: Malvaso v R (1989) 168 CLR 227 at 234 (Deane and McHugh JJ).
It has been held by the High Court that statutory provisions allowing an appeal by the Crown against sentence are to be construed as exceptional in accordance with the principle of legality as to allow a prosecution appeal against sentence contradicts the fundamental common law principle of double jeopardy: Lacey (2011) 242 CLR 573 at [17]-[19]. As explained in Green at [25], the principle of double jeopardy that was expressly displaced in relation to Crown appeals against sentence in NSW by s 68A of the Crimes (Appeal and Review) Act 2001 (NSW). That section has no application to the rr 36.16 and 36.17 of the UCPR relied upon by the Prosecutor in this case.
If the Prosecutor were successful in the Motion it would result in substantially larger fines being imposed than were pronounced in the Sentencing Decision. This would be a re-sentencing of the Defendants. Re-sentencing is contrary to the fundamental common law prohibition on double jeopardy, and clear and specific language would be required to permit rr 36.16 and 36.17 of the UCPR to be construed as extending to this circumstance.
The Prosecutor submitted that the task required by the Motion was not re-sentencing, as sentencing had been determined in the Sentencing Decision. The Motion was correcting an error apparent from an objective reading of the Sentencing Decision to ensure that the orders reflected the sentence determined to be appropriate.
As to this basis, I accept the submissions of the Prosecutor. The Motion seeks an order correcting an error in the calculation of the fine, not an error in the sentencing considerations. As identified above, the Sentencing Decision on its face indicated a means by which the Defendants would be sentenced and the appropriate fine to be imposed having regard to the sentencing considerations. The final orders did not reflect that reasoning and to that extent demonstrate an error. I am not being asked by the Motion to reconsider the sentence to be imposed upon the Defendants, rather the Prosecutor seeks an order that properly reflects the Sentencing Decision. That process does not require a reconsideration of sentencing considerations or the undertaking of the instinctive synthesis of those considerations, rather it requires the application of the arithmetic functions to be applied, as derived from the Sentencing Decision, to arrive at the appropriate numeric reflection of the reasons.
Accordingly, I do not accept that the Motion, either in terms or by consequence, is seeking to re-sentence the Defendants. Whilst the effect may be to change the amount of the fine that change reflects the intention of the Sentencing Decision not a change to the reasoning that determined the appropriate sentence.
[5]
Discretion - should the orders be varied?
Notwithstanding the findings above, it remains a discretionary consideration as to whether to make the orders sought in the Motion.
The Defendants submitted that there was plain prejudice that would be experienced by the Defendants if the orders were made. Not only will the Defendants have once been subject to the stigma of criminal conviction and the public notification of such punishment but there will be a second such judicial pronouncement informing all the world that the fines are being substantially increased. This would in itself operate to magnify the stigma of criminal conviction and punishment and is not a result that the Court would as a discretionary matter would or intended to inflict on the Defendants who have already been punished. Such a result would not be in the interests of justice.
The evidence before the Court in the Sentencing Decision was that the Defendants came from a small, close-knit community where the knowledge of the charges and the convictions were well-known and that the Defendants would suffer shame and humiliation in the event that an adjustment to the penalty was imposed.
It was also apparent that the Prosecutor had taken the opportunity to widely publicise the conviction and the penalty at the time of the Sentencing Decision.
The Prosecutor accepted that there was a risk of prejudice to the Defendants from this process but submitted that the weight of the discretionary considerations favoured making the orders sought. The rectification of the public record such that the fines imposed reflected the reasons in the Sentencing Decision was necessary both with respect to these Defendants and in future sentencing decisions. The disadvantage for the Defendants could be minimised by the making of clear statements in the judgment on the Motion that the reason for the alteration to the penalty was correcting an error not due to any wrongdoing on the Defendants' part.
I find that in the exercise of my discretion it is appropriate that I make order 1(a) of the Motion to correct my error in the calculation of the penalties to be imposed. It is of importance that the record accurately reflects the sentence that was intended to be imposed. The 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. Absent the correction of the fines, there is a real risk that these matters of public interest will not be properly served.
This is an error on my part. In calculating the fines to be imposed, for the reasons that I set out in the Sentencing Decision, I reduced the penalties for the Infrastructure Offences by an amount that I had not otherwise intended. The effect was that the Defendants' penalties were not the amount intended. The process does not reflect any further wrongdoing on the part of the Defendants, they are not being sentenced for further offences. For completeness, this error was not attributable to the Defendants.
[6]
Conclusion and orders
For the foregoing reasons, I make the following orders:
1. Vary orders in [81(1)(b), (2)(b), (5)(b) and (6)(b)] entered on 27 March 2024 to reflect the approach as set out at [80] of the Court's judgment in Natural Resources Access Regulator v Jindalee Road Wines Pty Ltd; Littore [2024] NSWLEC 26 such that the orders will be amended in the following manner:
1. Order at [81(1)(b)] be amended to delete the sum $67,500 and be replaced with the sum $135,000;
2. Order at [81(2)(b)] be amended to delete the sum $30,000 and be replaced with the sum $60,000;
3. Order at [81(5)(b)] be amended to delete the sum $187,500 and be replaced with the sum $375,000; and
4. Order at [81(6)(b)] be amended to delete the sum $93,750 and be replaced with the sum $187,500.
[7]
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: 16 October 2024