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

Statutory matters required to be taken into account in sentencing

1. In this matter the following factors as provided for in s 21A of the CSP Act are relevant: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters - (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - … (n) the offence was part of a planned or organised criminal activity, (o) the offence was committed for financial gain, The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows - … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if - (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23), 22 Guilty plea to be taken into account for offences not dealt with on indictment (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account - (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. … 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
2. It is to be noted that where the Prosecutor contends that a particular sentencing consideration should be treated as an aggravating factor, it must establish beyond a reasonable doubt the presence of such aggravating factor. Where the Defendants contend for the presence of a mitigating factor, it must be established on the balance of probabilities: Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [131].

Deterrence retribution and denunciation

1. Considerations of deterrence require consideration of the individual offender (specific deterrence) and the broader community of water users that may be tempted to carry out similar offending conduct (general deterrence). In this case, whilst I accept that Mr Littore and Jindalee Wines will continue to operate in wine growing industry, the prospect of them reoffending is low. The imposition of a monetary penalty in addition to the shame and remorse expressed by them give me confidence that they are unlikely to reoffend and as such no further specific deterrence is required.
2. In environmental offences the need for general deterrence is recognised. As the consideration was stated by Preston CJ in Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205 at [98]-[99]: 98 There is also a need for general deterrence. The sentence of the Court needs to operate as a powerful factor in preventing the commission of similar offences by other persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. Courts have repeatedly stated, when sentencing for environmental offences, that the sentence of the Court needs to be of such magnitude as to change the economic calculus of persons in determining whether to comply with or to contravene environmental laws. It should not be cheaper to offend than to prevent the commission of the offence. Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains by offending. 99 Where a fine or other monetary penalty is determined to be appropriate, the amount needs to be such as will make it worthwhile to incur the cost of complying with the law and undertaking the necessary precautions. The amount of the monetary penalty must be substantial enough so as not to appear as a mere licence fee for illegal activity: Axer Pty Ltd v The Environment Protection Authority (1993) 113 LGERA 357 at 359-360. The sentence of the Court changes the economic calculus of persons who might be tempted not to comply with environmental laws or not to undertake the necessary precautions. Compliance with the law becomes cheaper than offending. Environmental crimes become economically irrational.
3. Having regard to the need for general deterrence, I consider that the quantum of the fines imposed in the sentence with respect to each of the offences will be sufficient general deterrence.

Legal costs

1. The Defendants have agreed to pay the Prosecutor's legal costs as agreed in the sum of $95,000 with half of this sum to be paid once by each Defendant. I consider that it is appropriate that I take this factor into account in determining the appropriate sentence for each of the Defendants for each of the charges: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [88].

Totality principle

1. The principle of totality is a relevant sentencing principle in the present case where both offences with which each of the Defendants have been charged, and for which they have pleaded guilty, arise from the same identical facts and circumstances.
2. The principle has been concisely described by the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610 at 623 (McHugh, Hayne and Callinan JJ) as: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
3. 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].
4. 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.
5. 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.

A sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its subjective circumstances: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [162].

1. The primary factor to be considered in sentencing is the objective seriousness of the offence. The objective seriousness of the offence fixes both the upper and lower limits of proportionate punishment: the upper, as a sentence should never exceed that which can be identified as proportionate to the gravity of the particular crime; and the lower, as an allowance for the subjective considerations ought not produce a punishment that does not reflect the objective seriousness of the offence: Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [139]- [140].
2. The objective gravity of the offence is to be judged by two principal components: 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].
3. Having regard to the fact that the offences arise under the provision of the WM Act, for the purposes of consideration of sentence in these proceedings, it is appropriate to have regard to the stated objects of that Act, which relevantly include:

(1993) 113 LGERA 357

(1993) 32 NSWLR 683

(2008) 163 LGERA 71

(2006) 148 LGERA 299

(2005) 228 CLR 357

(1998) 194 CLR 610

(1982) 2 NSWLR 104

(2006) 145 LGERA 234