AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 2 February 2022

Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator

[2022] NSWCCA 9

Other
CRIME ENVIRONMENTAL OFFENCE WATER MANAGEMENT ACT 2000 ( NSW) APPEAL AGAINST SENTENCE

Citation: Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 2 February 2022
Judges: Preston CJ of LEC, Price J, Adamson J

Background

An appellant company that operated a large cotton irrigation farm near Carinda in north-western NSW pleaded guilty in the Land and Environment Court to constructing and using a water supply work (an irrigation channel) without holding the required approval under s 91B(1) of the Water Management Act 2000 (NSW). The channel was constructed over a period of approximately two weeks in July and August 2015 by contractors at the company's direction, and was subsequently used to convey water drawn from the Macquarie River into storage for irrigation.

The sentencing judge in the Land and Environment Court imposed a fine of $252,000, against a maximum penalty of $1,100,000. The judge also made a publication order under s 353G(1)(a) of the Act, which was not challenged on appeal.

The appellant company appealed the fine to the Court of Criminal Appeal on five grounds, contending primarily that the fine was manifestly excessive and that the sentencing judge had made various errors in the sentencing process.

  • Whether the sentencing judge adopted an impermissible two-stage or mathematical approach to fixing the quantum of the fine, contrary to the principles in Markarian v The Queen (2005) 228 CLR 357
  • Whether the judge erred in not treating the publication order as a relevant consideration in determining the quantum of the fine
  • Whether the judge incorrectly assessed the objective seriousness of the offending, including by treating the scale of the channel as determinative and failing to give proper weight to the absence of environmental harm and the likelihood that approval would have been granted
  • Whether the company's mistaken belief that no approval was required (a mistake of law) and its consequent lack of intention to offend amounted to a mitigating factor
  • Whether the judge erred in finding the company had not demonstrated genuine contrition and remorse
  • Whether the fine of $252,000 was manifestly excessive

Decision

The Court of Criminal Appeal dismissed all five grounds of appeal, granting leave to appeal but finding no appellable error in the sentencing judge's approach or in the quantum of the fine.

On the two-stage sentencing approach, the Court found the sentencing judge had not applied an impermissible formulaic or mathematical method. The judge's reasons, read as a whole, reflected a proper instinctive synthesis of all relevant factors, consistent with the approach endorsed in Markarian.

On the publication order, the Court confirmed that such an order is a separate and distinct sentencing consideration from the quantum of a fine. The sentencing judge did not err in declining to treat the existence of the publication order, or the company's non-opposition to it, as a reason to reduce the monetary penalty.

Regarding objective seriousness, the Court found the judge was entitled to treat the scale of the channel as a relevant indicator of the seriousness of the offending. The absence of environmental harm and the likelihood that approval would have been granted did not compel a finding that the conduct was at or near the lowest end of the range. The Court also confirmed that a mistake of law does not constitute a mitigating factor in criminal sentencing: the principle established in Ostrowski v Palmer (2004) 218 CLR 493 means that ignorance of the law is no excuse, and the appellant company's lack of awareness of the approval requirement could not reduce its culpability. On remorse, the Court found the sentencing judge's assessment that genuine contrition had not been demonstrated was open on the evidence, noting that the expressions of regret were limited and qualified in nature.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a publication order made under s 353G(1)(a) of the Water Management Act 2000 is a separate sentencing consideration and does not operate to reduce the quantum of a fine imposed for the same offence.
  • A mistake of law (that is, a genuine but incorrect belief that conduct did not require regulatory approval) is not a mitigating factor in criminal sentencing. Following Ostrowski v Palmer, the appellant company's ignorance of the approval requirement under the Water Management Act 2000 was not available to reduce its culpability.
  • In dismissing the appeal, the Court affirmed that sentencing judges are entitled to have regard to the scale and nature of unauthorised works when assessing the objective seriousness of a water management offence, even in the absence of actual environmental harm.
  • The likelihood that regulatory approval would have been granted, had it been sought, does not necessarily reduce objective seriousness to the lowest range of offending; the harm of bypassing the regulatory process itself remains a relevant consideration.
  • Expressions of regret by a corporate offender must be genuine and unqualified to support a finding of contrition and remorse; the sentencing court's assessment of whether that threshold is met will not readily be disturbed on appeal.

Legislation and Cases Referenced

Legislation:
- Water Management Act 2000 (NSW), ss 60G, 91B, 338A, 353A, 353B, 353C, 353F, 353G(1), 363B, 364, 364A, Pts 3A and 5
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)-(3)
- Water Management Amendment Act (No 31) 2018 (NSW)

Cases:
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84
- Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239
- Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
- Jackson v R [2021] NSWCCA 15
- Lai v R [2021] NSWCCA 217
- Lees v R [2019] NSWCCA 65
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
- Mulato v R [2006] NSWCCA 282
- Saddler v R [2009] NSWCCA 83; (2009) 194 A Crim R 452
- R v Baker [2000] NSWCCA 85